This is the story of Berkshire County’s experience with PCBs, a man-made toxic chemical that was used by the General Electric Company (GE) in its transformer and capacitor divisions in Pittsfield, Massachusetts. Unfortunately, massive amounts of these PCBs made their way into the Berkshire environment, contaminating homes, schools, Pittsfield’s groundwater, and the Housatonic River.

Since 1992, the Housatonic River Initiative (HRI), a broad-based coalition of Massachusetts and Connecticut environmentalists, sportsmen and women, small business owners, and contaminated property owners has been working for a fishable, swimmable Housatonic River, and PCB-free communities.

Before we tackle the issues of PCB contamination, it’s important to mention some very basic social and economic history. Since the turn of the century, General Electric, or “the GE” as most local people refer to it, was the very heart of Pittsfield, Massachusetts, and to some extent Berkshire County.

GE was the very linchpin of the County’s economy, and Pittsfield was a company town, employing more than 13,000 during World War Two and as many as 6,500 during the EPA’s site assessment in 1988. For most of the workforce, GE was the employer of choice. And few people were able or willing to confront GE on the issues of industrial contamination. Only recently as GE’s gradual abandonment of the city continued, and with its sale of its defence facility to Martin Marietta, have more people become vocal about a comprehensive cleanup. Even so, there are still many people who hesitate to come forward because they are worried they might endanger their GE pension.

The GE facility is comprised of 250 acres with five million square feet of building space. Part of the facility lies within the 100-year floodplain of both the Housatonic River and the Unkamet Brook, a tributary of the Housatonic which flows through the GE plant. At the facility’s southern border the ground surface slopes towards the Housatonic River. For many years an underground lake of PCB-contaminated oil has infiltrated the river system, and the neighborhood bordering the facility.

GE began to manufacture electrical capacitors and transformers at the Pittsfield plant beginning in 1903. PCBs, or polychlorinated biphenyls, are a group of distinct chemical compounds, none of which occur naturally. While first synthesized in 1881, they were produced commercially by Swann Chemical Company beginning in 1929. During the 1930s and 1940s, PCBs were often combined with “chlorinated napthalenes” manufactured by the Halowax Company. Swann was purchased in 1935 by the Monsanto Industrial Chemical Company. Monsanto produced PCBs at plants in Sauget, Illinois and Anniston, Alabama until 1978. PCBs were used in capacitors, transformers, hydraulic fluids, lubricants, carbonless copy paper, inks, pesticide extenders, sealants and flame retardants. Monsanto used the trademark “Aroclor” for its PCBs. (For more information on Monsanto and the terrible price some of the people of Anniston have paid see the website of the Environmental Working Group, www.ewg.org, and the website of The Center for Health, Environment and Justice, www.chej.org.)

There are 209 distinct chlorinated biphenyl “congeners” – two phenyl rings with differing amounts of chlorine atoms. Monsanto’s different Aroclors are differentiated by a four-digit number, first by its 12 carbon atoms, then by the weight of the chlorine in the mixture. Aroclor 1260, for example, is 60% chlorine.

Both GE and Westinghouse used massive amounts of PCBs in their transformers, insulators, and capacitors. Westinghouse called its product “Inerteen;”. while GE used the trade name “Pyranol” to denote its version of the Monsanto-produced PCBs. The Transformer Manufacturing Division of GE manufactured large and medium-sized AC and DC power transformers. Pyranol was used by GE from 1932 until 1977 when they stopped due to the Environmental Protection Agency’s (EPA) proposed regulations banning the manufacture of PCBs.”

According to the August 1988 RCRA Facility Assessment prepared for the US EPA: “Prior to 1977, synthetic oil containing PCBs were used as the electrical insulating medium in transformers. Before shipment, transformers were filled, pressurized, and tested under load … After testing, the oil was drained. Both new and used oil had to be stored and piped to various areas of the plant, mainly between storage tanks and transformer assembly/testing areas.” 

By 1936, there were already reports of serious health effects amongst workers who were exposed to these chemicals. Dr. Louis Schwartz, Senior Surgeon with the United States Public Health Service wrote an article in which he discussed treating not only workers who had been contaminated but a wife and child who had developed chloracne, a severe skin rash, from contact with work clothes. Dr. Schwartz wrote:

“In addition to these skins lesions, symptoms of systemic poisoning have occurred among workers inhaling these fumes. Those working with the chloro diphenyls (PCBs) have complained of digestive disturbances, burning of the eyes, impotence and hematuria. The latter symptoms developed among a number of men making amino diphenyl, which is used in the manufacture of a rubber antioxidant. Causes of death from yellow atrophy of the liver have been reported among workers exposed to the fumes of the chloro naphthalenes.”

“Patch tests performed with Halowax and with the chloro diphenyls (PCBs) have yielded negative results. The skin lesions probably result from the mechanical plugging up of the follicles of the skin with the waxes as the fumes solidify on the skin.* The chlorine present in the waxes may have an irritating effect on the plugged follicles and cause suppuration.”

GE Worker Bill Kowalski and his chloracne

PREVENTION

The protection of the workers from the irritating chemicals that compose the resins and waxes from the resins and waxes themselves. To do this, the process should be totally enclosed. If this is not possible, hoods with suction exhaust should be placed over open processes that dust and fumes are pulled away from the worker and out of the room.

The workrooms themselves should be ventilated by intake and exhaust fans to remove dust and fumes.

The floors, walls, and ceilings should be washed down at frequent intervals to keep them free of dust.

 Two lockers should be furnished to each worker. One for his street clothes and one for his work clothes. The lockers for street clothes and work clothes should be in separate rooms, with the shower baths between the locker rooms. The worker coming to work enters the locker room for street clothes, takes them off, and puts them in the locker and goes into the locker where his clothes are kept and dons them. From this room he goes to the workrooms through a connecting door. At the end of his shift, he goes through this door to the work clothes locker room, takes off his work clothes and leaves them on the floor or bench to be washed and then goes to the shower baths and bathes and dries. Then he goes to the street clothes locker room, puts on his clothes and goes out of the door leading to the street. It has been estimated at one point that 6 cents a day per worker will take care of furnishing clean clothes each day.

I have recently seen the wife and child of a worker who had developed comedones and pustules from contact with his work clothes which were saturated with halowax and which he was accustomed to wear at home. … “

There should be periodic medical examination of workers to detect cases of dermatitis and workers in chlorinated napthalenes and diphenyls (PCBs) should be periodically examined for symptoms of systemic poisoning. (emphasis added.)

Laws should be passed making it compulsory for factories where there are skin hazards to adopt these measures.” (pp. 591-592)

And in a second article “Skin Hazards in American Industry Part II”: No. 229 Public Health Bulletin, U.S. Treasury Department, Public Health Service (September, 1936), Schwartz states:

“Workers in chlorinated naphthalenes and diphenyls (PCBs) should be periodically examined for symptoms of systematic poisoning.” (p. 10)”

In September 1937, Dr. Cecil Drinker published an article entitled “The Problem of Possible Systemic Effects From Certain Chlorinated Hydrocarbons.” Dr. Drinker of Harvard University had been hired by the Halowax Corporation to investigate mounting health problems among its workers exposed to chlorinated napthalenes and diphenyl. Halowax used these chemicals to coat electric wire. And GE began using Halowax’s products.

Drinker’s article quoted extensively from a conference held by the Harvard School of Public Health attended by representatives from Halowax, Monsanto, GE and the U.S. Public Health Service. Dr, Drinker wrote: “… the chlorinated diphenyl is certainly capable of doing harm in very low concentrations and is probably the most dangerous … These experiments leave no doubt as to the possibility of systemic effects from the chlorinated napthalenes and chlorinated diphenyls.”

At the conference, Mr. F. R. Kaimer, the Assistant Manager of GE’s York Wireworks in Pennsylvania reported about his experience with these chemicals:

“It is only 1 1/2 years ago that we had in the neighborhood of 50 to 60 men afflicted with various degrees of this acne about which you all know. Eight or ten of them were very severely afflicted – horrible specimens as far as their skin conditions was concerned. One man died and the diagnosis may have attributed his death to exposure to halowax vapors but we are not sure of that … we had 50 other men in very bad condition as far as the acne was concerned. The first reaction that several of our executives had was to throw it out – get it out of our plant. They didn’t want anything like that for treating wire. But that was easily said but not so easily done. We might just as well have thrown our business to the four winds and said, “We’ll close up,: because there was no substitute and there is none today in spit of all the efforts we have made through our own research laboratories to find one.” 

Mr. Kaimer then went on to discuss the routine they developed at the plant to treat these problems with two local physicians and a nurse, the use of x-rays, surgery, and an improved ventilation system, showers, and clean work clothes.

GE’s medical director, Dr. B.L. Vosburgh of Schenectady, New York was present and stated: “About the time we were having so much trouble at our York factory some of our customers began complaining. We thought we were having a hysteria of halowax mania throughout the country.”

Monsanto was represented by Dr. R. Emmet Kelly who said “I can’t contribute anything to the laboratory studies, but there has been quite a little human experimentation in the last several years, especially at our plants where we have been manufacturing this chlorinated diphenyl … A more or less extensive series of skin eruptions which we were never able to attribute as to cause, whether it was impurity in the benzene we were using or to the chlorinated diphenyl.” (The Journal of Industrial Hygiene and Toxicology Vol. 19 (September 1937), pp. 283-311)

Attorney David S. McCrea of McCrea & McCrea of Bloomington, Indiana spent many years investigating the health effects of PCBs of the workers who were employed at the Westinghouse plant there. One of the reports he and his researchers discovered was a 1938 document by Dr. W.P. von Oettingen, the Director of the Haskell Laboratory of Industrial Toxicology. vi

Dr. von Oettingen wrote: “The contact of Inerteen with the skin causes dryness of the skin, thickening and scaling, and it appears that sufficient quantities may be absorbed in this way to cause damage of the liver.” Dr. von Oettingen echoed Dr. Schwartz’s call for preventive measures.

According to interviews with Pittsfield workers, GE never provided the comprehensive safeguards suggested by Drs. Schwartz and von Oettingen, and some Pittsfield workers routinely worked up to their armpits in PCBs. Oftentimes the transformers, filled with PCBs, were put to pressure and PCB-laden oil spilled to the floor. Workers walked through small pools of PCBs. Some workers were extremely sensitive to the fumes and had to be transferred to other divisions. Workers routinely went home with their clothes soaked with PCB-oil.

David McCrea also found a September 20, 1955 letter written by Dr. R. Emmet Kelly of Monsanto Chemical Company (MCC) to a Dr. J.W. Barret of London about Aroclor Toxicity:

“MCC’s position can be summarized in this fashion. We know Aroclors are toxic but the actual limit has not been precisely defined. It does not make too much difference, it seems to me, because our main worry is what will happen if an individual developes any type of liver disease and gives a history of Aroclor exposure. I am sure the juries would not pay a great deal of attention to MACs.” (emphasis added. MAC = maximum allowable concentrate.)

By the mid-1960s, Swedish scientist Dr. Soren Jensen found levels of PCBs in fish throughout Sweden and discovered that PCBs level increase or “bioaccumulate” as they move up the food chain and get absorbed in fat tissue. Human beings, and animals like whales, polar bears, and dolphins who eat other animals or fish or contaminated plant life end up having highly concentrated PCB levels.

In 1968, 1,300 people in Kyushi, Japan used rice oil contaminated by PCB oil. Many got seriously ill with chloracne, developed tumors, and scientists soon discovered that PCBs can damage the immune system. The Kyushi victims developed liver cancer at rates 15 times higher than usual.

On March 18, 1975 W.B. Papageorge, Manager of Product Acceptability, Specialty & Process Chemicals, Monsanto Company, St. Louis, Missouri responded to a series of questions from Dan A. Albert, Staff Supervisor, Personnel Relations at Westinghouse Electric Corporation in South Boston, Virginia about health problems possibly caused by PCBs. Papageorge writes:

“Question: Does Inerteen have permanent effects on the human body? If so, what type of permanent damage and how long a period of time does it take for this to develop? If not, explain why, if possible.

“The polychlorinated biphenyls in Inerteen can have permanent effects on the human body. … There is a potential real effect to humans – including death – as discussed in answer to Question 1. (emphasis added.)

In 1981 there was an electrical fire in a state office building in Binghamton, New York. When a transformer cracked, approximately 180 gallons of PCB oil escaped, and an oily soot coated much of the18 stories of the building, which was closed during a four year cleanup.

Peter Montague, writing for Rachel’s Environment & Health Weekly compiled a remarkably useful guide to the history of PCBs.

Here’s his history from 1865 to 1972:

The History of PCBs 1865-1972

And the continuation from 1973 to 2001:

The History of PCBs 1973-2001

In 1990, HRI Board Member Mickey Friedman, interviewed Ed Bates and Charles Fessenden for a proposed documentary film on GE and Pittsfield.

Ed Bates: “We were in the Power Transformer sub-section. Power Transformers when they’re sold are sold under the NEMA standards, National Electric Manufacturers Association standards, and as such we have to meet certain limits and standards of performance on it. This was whether it was a $7,000 transformer or $1,500,000 transformer. We were the official test department that made all the tests. Charlie was the Supervisor of Calculations, which is probably the most critical because probably half of the customers at the time would send in their engineers to discuss these tests, and Charlie would have to sit with them and explain it, and cover any of our defects up (laughs) as we went along.

Putting Transformers Under Test

“I was the Manager of the department at the time. And I can honestly say I knew everybody that worked for me by their first name, who was married, who wasn’t, whether they were having problems … This was a thing that you had and this is where you got the output from the people. … we were the Quality Control essentially is what we did. We determined if the product met with what the customer specified. …

Charles Fessenden and Ed Bates

“And a transformer does just what it says: it transforms. They put electricity in at what say thirteen thousand volts and they would step it up to two hundred and thirty thousand, transmit it 250, 300 miles for North Chicago, down in Joliet and this was a very demanding … and of course this is where Charles and I started to get involved with Pyranol because it was back in 1934 when we were just grammar school children that the U.S. government said any transformer that goes inside a building must have a non-ignitable fluid in it, and the GE scientists and engineers in 1936 came out with Pyranol which had polychlorinated biphenyls in it. “And people don’t realize that Pyranol is twice as heavy as water. You put a gallon of Pyranol in water and it sinks right to the bottom. Within that twelve and a half pounds of Pyranol weighs, seven pounds of every gallon is PCBs. We used to use an average of 20,000 gallons of Pyranol a week. And this is, if you did simple mathematics, this is 140,000 pounds of Pyranol, of PCBs a week that we were handling. And we had a loss rate, spillage, over-filling of about 3% so this says that every week, we would lose between 4,000 and 5,000 pounds of PCBs that would go down the drain and into the river.”

It’s important to stress how critically important Ed and Charlie’s information was. From the very beginning the US EPA accepted GE’s analysis and accounting of the PCB contamination of the Housatonic River, all based on the Stewart Report they commissioned. Here’s how EPA described the problem in its official Site Assessment of the GE Facility:

For years, the Massachusetts Department of Environmental Quality and Engineering, and the US EPA and even local agencies like the Berkshire County Regional Planning Commission accepted this nonsensically low estimate of the PCB problem.

Here are excerpts from 1982 study from EPA’s Water Quality Management Program:

The above document in so many ways reveals the sad reality we at HRI and others who cared about the health of the Housatonic faced. An EPA that had deferred its responsibility and mistakenly believed what GE and the Massachusetts Department of Environmental Quality and Engineering told them about how many PCBs had escaped their plants and where they had gone. Ironically the Consent Decree they signed was hardly worth the paper they signed. And they so terribly misinterpreted the spirit of GE, Stewart Laboratories, and Steve Joyce of DEQE.  As for the commitment of the Berkshire County Regional Planning Commission to provide an open and cooperative effort, that seemed to work best for the folks from GE and Mr. Joyce and the DEQE we’d see leave together after the meetings at Western Mass Electric for celebratory drinks. As for optimism and a fishable river they were only off by oh so many decades that so many of us will never see.

You can download and read the document here:

1982EPAWaterQuaityHR

And so it was that HRI time and time again insisted on a new regime of systematic testing of the river sediments and river bank soil. Testing under the auspices not of GE’s consultant, Stewart Laboratories, but the environmental agencies.

This is an illustration of the underground plumes of contaminated oil that moved from GE’s factories to nearby businesses and homes on East Street and to the Housatonic

GE Plant, Silver Lake, Housatonic River and surrounding Pittsfield neighborhoods

Here is Ed’s more detailed description of how the GE workers handled the PCB oil:

“The Pyranol was manufactured by Monsanto Company and came from Love Canal.  And it came into the back of Building 12Y, which was one of the Test buildings, and it shipped in 7,000 gallon tank cars rather than 10,000 because of the heavier weight.  Pyranol weighs 12 and 1/2 pounds a gallon and oil 7.45 pounds per gallon.  The 7,000 gallon raw Pyranol as we called it would then be unloaded into holding tanks and there were 50 to 70 foot distances from the bottom of the tank car to the holding tanks that we would use a unloading apparatus for, pipe and so forth, and the remainder would spill on the ground, whatever was left in there.  After it was unloaded it would then be combined with a substance called tintetrylphenol, which would uhh form of PCBs that would be added to the initial one to prevent arcing, electrical arcing within the Pyranol.  And at that stage of the game, it would be combined and then tested and combined and tested until it met the required electrical strength, and at that point it would generally contain about 6 lbs of PCBs in the Pyranol, compared with the total weight of Pyranol of 13 lbs, 12 and 1/2 lbs, so it was approximately 50% of the weight of the Pyranol. 

“Pyranol was then brought to various stations on Power Transformer Department which made apparatus transformers and Distribution Transformer, nominally called the North Side and South Side, where it was used to do two things: one, it was used to fill the transformers for test, and then it was also used to fill up and put units on pressure, which would invariably leak and have to be welded and so forth and we’d have it dripping on the floor and, and things like that.  If a unit did not pass test, the Pyranol was uh returned into tank cars and uh these were small 500 gallon cars that were mobile, that moved around but a lot of times you would have a flood or one of the seams would leak or a valve would let go and you would have a spill of maybe a 1,000 or 1,200 gallons of Pyranol, and this would eventually go down to the sump and go out to the river.  Well that doesn’t sound like much but a 1,000 gallons of uh Pyranol was … 6,000 pounds of PCBs, so we were on a daily basis discharging PCBs in the river, and by we I mean the GE company I don’t mean just the Power Transformer Department, but also the Distribution Transformer and until 1948 that the Capacitor Department was on was in Building 43 which later moved to Hudson Falls, New York, where they have a problem with uh with PCBs at Hudson Falls.

“Uh this was a continuous process that uh we would in some cases use 35-40,000 gallons of Pyranol a week, other weeks we’d use 10 depending on the types of units.  There[ were] some apparatus transformers that would hold up to 3,000 gallons of Pyranol.  Uh this means that the transformer would have anywhere from 15 to 20,000 pounds of PCBs in it.  And if anything happened to it, if there was a failure, we’d have to drain this, all this Pyranol back which would result in spillage and loss of  – the engineering standards called for a 4% loss and the total volume that went into each transformer.  Now I’m not sure what Distribution was, Distribution Transformer which was an entirely different department, but Power Transformer we used to use a loss ratio of 6% for oil and 4% for Pyranol.

Large GE Pittsfield Transformer – Photo: Engineering & Technology Wiki

“So it was a continuous process with the Pyranol coming in from Love Canal and we adding the tintetrylphenol to get the desired solution, then it would go through the factory, at both the South Side and the North Side, and the Pyranol would be shipped with the transformer.

“But one of the things that we always had to do was we had to meet the pressure requirements so we had to bring the Pyranol up and put the unit on pressure for 24 hours, so it would stand the pressure of maybe 6 pounds, 10 pounds, 15 pounds.  At the end of 24 hours you’d draw that Pyranol back down and theoretically you’d put it in a container, but there were a lot of cases if the container wasn’t available and you’d say, it was 50 gallons or a 100 gallons, a lot of times, they would just drain it, let it go down the sump …

“Did they ever tell you it was dangerous?”

Ed Bates: “No … neither of us blame the GE for that. Any fluid or anything that you used in those days, you’d run a two-week test on it and if you didn’t break out in welts or your eyes didn’t water too bad, they would use it. And it turns out that Charlie and I feel, from our observation, the latency period of Pyranol, PCB Pyranol is around fifteen to twenty years. You really got to be exposed to it, and you did get itching out of it and you got sore eyes out of it, remember Charlie (Charles Fessenden: Oh sure). We’d heat it up, and this we would heat up to 55 degrees C or around 120 degrees when we were running tests on transformers. And the odor of it was unbelievable. It’d choke you but , you know, there was nothing published. And if a guy didn’t break out from hives or something you didn’t worry about it. Or I, people would come into me as the Manager and say, it’s bothering me, and I’d say fine and I’d put them in another area. It wasn’t until 1969 that it became noted, and it was noted by the GE in a document, that it was a real problem and they would start reviewing what they could use in order to go out of the use of Pyranol, PCBs, but it wasn’t until 1975 and ’76 that they started to use silicon and phase out Pyranol.”

Especially vulnerable were the crane operators. There was a pervasive mist formed by the oil being put under pressure, and the fumes were rise to where the crane operators were working:

“We had a meeting last Sunday, a forum where the head of the … Massachusetts DEQE talked and he said that they’d been trying from 1981 to now, which is 1990 to get a agreement of consent from the GE. He was very indefinite as the time on it. The Eagle said they had put these special cylinders in the water, didn’t they, Charlie for three years , so this means it’s been since 1981 to 1993 before they’ll decide to do anything about the Housatonic River. In the meantime about a million and a half pounds of PCBs have been plowed into that river. I imagine a good 30% is left.” (Emphasis added.)

Ed Bates and Charles Fessenden deserve great credit for alerting the Berkshire community to the dangers of PCBs, not only to those who inhabit the river systems but to the men and women who worked hard for GE and paid a great price:

“Charles and I’ve been very close since we were in school and it would seem to me that every other week Charlie would say “OK we got to go to a funeral (CF: a wake) a wake” or we’d end up going to a funeral.  And it wasn’t just the Tests where we worked, the building itself where we used to mix the Pyranol, and deliver it out through a series, a system of pipes.  There was a Shipping group.  There was a Maintenance group.  There was an Assembly group.  There was a Test group.  All these people were in the same building and it seemed to me that we were – you know, it started to get on you.  Charlie and I had reached the age of 40 and 50 and say, gee why come all these people are dying, but we didn’t do anything about it.  Maybe we were wrong …

“You get a little resentful at times because people are paying attention to the environment.  They should.  But here’s – one of the big things is PCBs – they put yellow stripes up and you can’t go near it and so forth.  And yet our people worked in it.  They would have to reach in it up to their arms and change links and everything.  And, you know, ‘Oh, that’s tough, that’s in the past! You know.’  And then it gets indefinite – is it a cancer-causing – does it cause cancer or not?  You got about eight studies that say yes and about four studies who are indefinite, so you take the studies that are indefinite, say they’re gospel and the ones that say there is a real problem are tended to be discarded.”

In 1982 Massachusetts noted that Pittsfield recorded 35% higher numbers of male bladder cancer than other towns and cities in the Commonwealth.

Lakewood resident checks out neighborhood cancer map

Here’s how the EPA describes GE’s use of PCBs:

“Since the early 1900s, GE operated a large-scale industrial facility including the manufacturing and servicing of power transformers, defense and aerospace (ordnance) and plastics, and used numerous industrial chemicals at its Pittsfield facility. From 1932 through 1977, General Electric manufactured and serviced electrical transformers containing PCBs. Years of PCB and industrial chemical use, and improper disposal, led to extensive contamination around Pittsfield, MA as well as down the entire length of the Housatonic River … approximately 150 miles from its headwaters on the East Branch in Hinsdale, MA and flows through Connecticut into Long Island Sound.

“The 254-acre GE plant in Pittsfield has historically been the major handler of polychlorinated biphenyls (PCBs) in western Massachusetts, and is the only known source of PCBs found in the Housatonic River sediments and floodplain soils in Massachusetts. Although GE performed many functions at the Pittsfield facility throughout the years, the activities of the Transformer Division, including the construction and repair of electrical transformers using dielectric fluids, some of which contained PCBs (primarily Aroclors 1254 and 1260), were one likely significant source of PCB contamination. According to GE’s reports, from 1932 through 1977, releases of PCBs reached the waste and storm water systems associated with the facility and were subsequently conveyed to the East Branch of the Housatonic River and to Silver Lake.

“During the 1940s, efforts to straighten the Pittsfield reach of the Housatonic River by the City of Pittsfield and the U.S. Army Corps of Engineers (USACE) resulted in 11 former oxbows being isolated from the river channel. The oxbows were filled with material that was later discovered to contain PCBs and other hazardous substances.

“Upon learning of the chemical’s ability to harm wildlife and human health, EPA banned the production of PCBs in 1979. The cleanup areas in Pittsfield join numerous PCB sites throughout the country in size and clean up challenges. After testing groundwater, river sediment, soil, and wildlife, it was clear that the contamination needed to be addressed. PCBs do not readily break down in the natural environment, if left untouched at this site they would continue to pose a risk.
The build-up of PCB levels within animals is known as ‘bioaccumulation’. PCBs do not break down quickly once consumed; instead they are carried up the food chain. Health effects from PCBs have been linked to cancer and other serious effects on the immune system, reproductive system, nervous system, endocrine system and other organs.

“EPA’s greatest concern in the area is the possibility of coming into direct contact or ingesting PCB contamination. Since 1977 there has been a ban on fishing / consumption of fish from areas of the Housatonic River. These restrictions will remain in place until PCB levels decrease. Data are collected to ensure that the current restrictions protect human health.”

After interviewing Ed and Charlie, Mickey Friedman videotaped Remo DelGallo, the former Mayor of Pittsfield and owner of DelGallo’s, the restaurant/bar across from the GE plant on Newell Street. Remo was one of the first people in Pittsfield to realize how serious the PCB problem was. Here’s his short history:

“My involvement goes back to January 1980 when I saw a group of people drilling test wells in the road, and uh I was wondering what they were doing so I called the Commissioner of Public Works at that given time, and the Commissioner of Public Works at that time was Gerry Doyle, Senior, the Mayor’s father.   And he said to me, ‘Remo, I can only tell you what they told me.  They’re looking for the location of the water table and the flow of water in the water table.’  We knew that wasn’t what they were looking for.

“And uh that’s when we became directly involved in what was going on and in the meantime they drilled approximately 200 test wells in this given area, bordering Newell Street, East Street, and Fasce Place, all the way to the Housatonic River.  And uh, now what we were primarily concerned about was – is the liquid waste and uh you know I’ve mentioned time and again Pittsfield is a city but it’s still a village.  Everybody knows what’s going on.  I can go back 50, 60 years if need be that when the General Electric Company had the oil tanks, the oil house up on the northerly side of the railroad tracks next to Peck’s Bridge, those tanks leaked for years and years and years and I don’t know why they never took corrective measures and the oil flowed down the embankment, under the railroad tracks and then into East Street and what was said uh created a plume and when they say a plume, they’re talking about an underground lake of oil …

“We saw the oil – there was a tremendous amount of oil even in those days.  Now you have to remember, inside the General Electric Company – it’s an old plant located in the center of the city of Pittsfield and there were umpteen drains all over the place.  And they dumped a voluminous amount of oil in those drains.  Nobody even knew where the drains went.  Some leeched into Silver Lake; a good number of them went into the Housatonic River.  But my real concern at the time was, when I say credibility gap, I say it for a given reason because the gentleman who was a personal friend of mine, a fellow by the name of George Rousseau, was in charge of all liquid waste disposal for the General Electric Company since 1936 and he is the one that informed as to where the liquid waste was being dumped – four given sites on General Electric property – and you probably don’t understand what they mean by waste oil.  

“It came in 30 gallon barrels and 55 gallon barrels, some two-thirds Pyranol, one-third oil; two-thirds water, one-third Pyranol.  And when I say disposed, we’re talking about thousands and thousands and thousands of gallons of oil.  We’re not talking about crank-case oil, a hundred and fifty gallons.  We’re talking about thousands and thousands of gallons of oil, including that oil tank that they had up on what is known as Peck’s Bridge, 550,000 gallons of oil, that’s how much – it held that capacity – and it leaked for years and years and years, before 1964 and after 1964.

“Now I’ll go back to 1980 when we contacted Angelo Inatosca and he had an associate, Walter Schwartz, they worked for what we called the DEQE, the Department of Environmental Quality Engineering, and they stated that it never penetrated, the plume, the oil never penetrated the southerly side of East Street.  So I took it upon myself to take them up to a place known as Bardo’s Bakery and now we have Hiser, H&S Automotive up there and uh Bardo’s Bakery, I remember he had a sump pump at the bottom of the stairs and I said to Angelo Inatosca at the time and representatives of the General Electric Company and EPA, if there’s no oil in that sump pump I’ll agree with you it never penetrated the southerly side of East Street.  And now when we went up there and uh we checked that sump pump, it was loaded with oil, loaded with oil.

“And the sump pump was emptying into the city sewer line and I explained it to them what happens when you empty that sump pump into the city sewer line from there it goes down to the sewer treatment plant and from the sewer treatment plant into the Housatonic River, from the Housatonic River into Lenoxdale uh Wood’s Pond …  

“And they also stated and when I say they I’m talking about representatives of the General Electric Company and Angelo Inatosca it did not touch the Housatonic River and yet we did find out it did penetrate the Housatonic River.  They said it did not contaminate Goodrich Pond and since then we found out that it also contaminated Goodrich Pond.”

One of the first organized responses in the neighboring Lakewood neighborhood to this concern  for public health was spearheaded by Remo DelGallo and the late Bernie Kleban of Monterey,  MA and the Massachusetts Coalition of Occupational Safety and Health. With the help of local nurses and Dr. K. D. Rosenman of New York,  they organized a program of serum PCB testing. Bear in mind that we all have PCBs in our body and blood. Based on a nationwide analysis, health experts have determined a background level for those live away from contaminated sites and have no occupational exposure. The recent background level is 0.9 to 1.5 parts per billion (ppb) in the blood. Here’s what Dr. Rosenman found:

As for some of the severe consequences of GE’s irresponsible misuse of PCBs on the environment: a fish consumption advisory for the Housatonic River was issued by the Massachusetts Department of Public Health (MADPH) in 1982 from Dalton, MA, to the Connecticut border as a result of the PCB contamination in the river sediments and fish tissue. It was later amended to include frogs and turtles. The State of Connecticut also posted a fish consumption advisory for most of the Connecticut section of the river in 1977.

For years HRI had been hearing about the toll working at GE, and living in Lakewood had taken on the health of the community. For years HRI had been advocating for the MDPH to come and perform a comprehensive health assessment.to follow up on the Rosenman study. Sadly, this was a clear example of unfortunately getting what you wished for. The MDPH turned out to tragically misrepresent the real dangers the Pittsfield community faced.

First, HRI argued during the planning stages that this study was poorly designed and would not attract those with the most likely history or opportunity for exposure to PCBs. We argued as well that the study should include serum testing of individuals from neighboring hilltown communities in Berkshire County without opportunities for exposure to PCBs to establish a more local and more valid background level. Our suggestions were ignored.

The MDPH Housatonic River Area PCB Exposure Assessment Study explained: “Residents of eight communities that live within one-half mile of the Housatonic River were randomly chosen to participate in the exposure assessment study …  Of the total 1529 participants enrolled in the household screening survey …

“Finally, 69 individuals of the 1529 participated in blood testing. “Total serum PCBs, which were classified as Aroclor 1260, ranged from non-detectable to 35.81 ppb, with a mean of 5.44 ppb and a median of 3.93 ppb.”

The Public Health Assessment continues: “In addition, residents who were not chosen for the study but who were concerned about exposure to PCBs were offered the opportunity to volunteer to participate in a separate effort … 

MDPH’s stated: “The serum PCB levels found among participants of both studies were generally within typical background estimates for a non-occupationally exposed U.S. population. ATSDR reports that, for U.S. populations without occupational exposure, mean serum PCB levels were usually between 4 and 8 ppb, with 95% of the individuals having concentrations less than 20 ppb. Since the results of this study represented individuals with the highest risk of exposure, it is reasonable to assume that serum PCB levels of most non- occupationally exposed residents in the HRA communities are within the US background range, though individual differences may likely occur. ”  (Page 2, emphasis added.)

After reassuring the Berkshire community that serum PCB level were in normal background levels for the United States, MDPH went on to conclude there was no need for future epidemiological studies:

Except MDPH mischaracterized the background level for PCBs in human blood for those who aren’t exposed to PCBs in the workplace or live beside a toxic waste dump. HRI then contested the use of what we regarded as the outdated background range data for non-occupationally exposed individuals of 4 – 8 ppb. In several health forums, HRI consulted with nationally-known PCB researchers, including Drs. Deborah Rice and James Cogliano of the USEPA, and Dr. David Carpenter of the School of Public Health at the State University of New York, Albany, all of whom have stated that a more accurate figure for a background range for non-occupationally exposed individuals is significantly lower. Dr. Carpenter recently reported that the latest ATSDR estimate for background levels lies between 0.9 – 1.5 ppb. And Dr. Rice and others have spoken about recent studies in both the United States and Europe that suggest possible adverse developmental effects occurring among individuals with serum levels in this background range.

GE seized on the MDPH studying its series of full page ads in the Berkshire Eagle to downplay the PCB problem and in particular to insist there was no real or valid health concerns:

Spurred by our concerns about the MDPH Study and GE’s interpretation of the study’s results to  claim that Pittsfield’s residents had average PCB levels and there was therefore no cause for  public concern, the Attorney-General of Massachusetts, Scott Harshbarger, convened a workshop  on February 5, 1998 to discuss “Health Concerns Relating to PCB Contamination in Pittsfield  and Southern Berkshire County.” The group included representatives from HRI, the USEPA, the  Massachusetts Department of Environmental Protection, MDPH, Drs. Richard Clapp and David  Osonoff of Boston University and Dr, David Gute of Tufts University. 

The group agreed that the ATSDR figure is based on data that is at least a decade old, and  therefore it may no longer be accurate. In addition, neither the ATSDR figure, nor the DPH  results, were “congener specific.” Because the PCBs at issue in Pittsfield are of the relatively  toxic variety, while the ATSDR figure is for all varieties (including the much more prevalent  congeners of lesser toxicity), the comparison to the ATSDR figures may not be “apples to  oranges,”  but it may be “apples to mixed fruit salad.”  …  In  light of such  problems, many  workshop attendees questioned why the blood study did not include for comparison purposes a  “control group” of people in Berkshire County who had likely not been exposed to PCBs. The  DPH response was again that  the  agency did not have the resources available to do what it  would have liked.”  (Report Relative to the Workshop Regarding PCB Contamination,  pp.  7-9)

MDPH convened an Expert Panel which included 11 nationally and internationally known  experts on the health effects of PCBs. Unfortunately the MDPH charged the panel with a broad,  general mission and, as a result, the panel failed to look specifically at our experience in  Pittsfield and Berkshire County.

On December 19, 2000 members of the Expert Panel met with the public. The panel agreed with  us at HRI that the MDPH range of  4-8 ppb in blood for people not exposed to PCBs at the workplace is not current, and that the range is probably significantly lower.

Smoke From GE’s PCB incinerator – Puff The Magic Dragon over Newell Street

One of the most interesting aspects of the meeting was the interchange between residents and panel members. The more the panel members learned about the various ways people in our area  have been exposed to PCBs – working at GE; exposure to PCB-contaminated fill at home, or at  Allendale School; exposure in Lakewood to PCB-oil plumes; eating contaminated fish or ducks;  or  airborne exposure via the GE PCB-incinerator or volatilization – the more several panel  members supported the idea that additional, better designed studies made sense. Two local  doctors, Dr. Charles Wohl and Dr. Siobhan McNally, a pediatrician, emphasized the need for  more information. Dr. McNally stressed the importance of gathering specific information about  the risk to children. And several members of the Expert Panel agreed with her that because of  the multiple pathways of exposure, and the high levels of PCB-contaminated soil in residential  areas, they thought it appropriate to design a serum PCB study of children and young people in  Pittsfield.

Then, in 1999, MADPH issued a waterfowl consumption advisory from Pittsfield to Great Barrington due to PCB concentrations in wood ducks and mallards collected by the Environmental Protection Agency (EPA) from the river. Concerns expressed by local residents regarding possible health effects resulting from exposure to PCB contamination are being investigated by the MADPH.

“While the two miles downstream from the facility have historically been channelized, the river’s course is relatively unaffected (with the exception of the numerous dams downstream) in areas south of Pittsfield. The approximately 10 miles of river from the confluence of the East and West Branches of the Housatonic to the headwaters of Woods Pond in Lenox are bordered by extensive floodplains (up to 3,000 feet wide), ranges from 45 to 100 feet in width, and has a meandering pattern with numerous oxbows and backwaters.  Woods Pond, a shallow 56-acre impoundment, was formed by the construction of a dam in the late 1800s.”

Not only did massive amounts of PCB oil leak from the factories into the river but GE employed an absorbent material – Fuller’s earth – to soak up the large amount of oil that spilled from the transformers under test to the factory floors.

Here’s what Ed and Charlie had to say about that:

“CF: Sure, well look at Kelly
EB: Yeah, Niederjohn …
CF: He was terrible, you know.
EB: And now he’s concerned about the Fullers Earth … which, you know, there’s a million and a half pounds of Fullers Earth buried somewhere around Pittsfield.
CF: You bet, well they’re digging that up little by little.
EB: Little by little …
CF: They’re finding the sites.
EB: Well if I were them I’d be worried about where the Stop N’ Shop is because there used to be a big dump right in back of the Stop N’ Shop.  Remember there used to be an outdoor movie there.”
CF: That’s a wetlands area too …”

There was more oil-soaked Fuller’s earth than GE knew what to do with. Tractor trailer loads were taken to the Pittsfield City dump. GE’s utilized other off-site dumping grounds. GE gave away barrels to its employees to fill in their wet backyards. In addition the company gave away oil-soaked flooring that employees used to build outdoor decks on their homes.

Here’s testimony from the deposition of Gerald Doyle Sr., the then Mayor’s father, and former head of the Pittsfield Department of Public Works. On December 7. 1997 he was asked about GE’s use of the Pittsfield landfill:

Deposition, Gerald Doyle, Sr., December 9, 1997, Caroline Church vs. General Electric Co.
Question: Were you at any point familiar with how much stuff came out of the General Electric facility and was put in the landfill?
Answer: A shit load.
Question: What do you mean by that?
Answer: A bundle.
Question: How many truckloads a day?
Answer: I would say they would bring in, and I am guessing, maybe six truckloads a day. You know, ten wheeler dump.
Question: Six ten wheeler dump trucks a day.
Answer: Every.
Question: Every day?
Answer: Every day.
Question: For the life of the landfill?
Answer: Yes.
Question: And there was no tax payment to the city?
Answer: I don’t believe so, no.

Just some of the GE contaminated waste Pittsfield found when it began to excavate the city landfill.

Several critical documents emerged that showed how extensive GE’s use of PCBs was, and how GE had hid its extensive and irresponsible dumping practice. The Niederjohn memos, sparked by Kelly Niederjohn’s concern for future generations, reinforced what Ed Bates and Charlie Fessenden and HRI had been telling the community:

When the City of Pittsfield was constructing its new Allendale Elementary School much of that land was filled in with contaminated material from GE.

It turns out a former dump favored by contractors hired to dispose of GE waste was later used for the Dorothy Amos Children’s Park.

When the whole issue of PCB contamination became a major public issue – thanks in large part to HRI. Because several former truckers came fro HRI with detailed information about where they had disposed of GE waste. Unfortunately, both the Massachusetts’ Department of Environmental Protection (DEP) and the EPA were skeptical about this information. Because we were now learning that GE waste had been widely distributed throughout the city and beyond.

HRI pressured the DEP to set up an anonymous 800 phone number for truckers and present and former GE employees to report on how and where PCB-contaminated materials had been disposed on. Needless to say, DEP received many invaluable leads.

2007 cleanup of PCB contaminated fill at the Allendale School – Photo EPA

HRI discovered from various truckers how often they had dumped in residential areas. As we talked to more and more homeowners in the Lakewood neighborhood – a neighborhood bordering the GE facility and home to many GE employees, we discovered that GE had homeowners fill out a contract absolving the company of any liability. Claiming that they had received “clean fill.”

 

HRI’s continuous advocacy with local homeowners resulted in hundreds of home being tested for PCBs by GE under the supervision of the Massachusetts Department of Environmental Protection. Pittsfield homeowners were up in arms, vigorously demanding that GE clean their homes.

HRI helped to organize the neighborhood:

While initially resistant to the notion that so many Lakewood homes had received GE contaminated fill, MDEP began to give into the building public pressure to insist that GE test homes.

Not surprisingly GE mounted a massive public relations campaign to deny the seriousness of the problem. Taking full paid ads in The Berkshire Eagle:

The testing also revealed that river front homes had exceedingly high levels of PCB in their backyards:

It became increasingly apparent how very contaminated these homes were. In response to the growing realization of the scale of the problem, Lakewood neighbors expressed their anger with the state, GE, and local government:

It got to the point where whole streets were being remediated:

 

GE’s PCBs had made their way to backyards in residential neighborhoods, to a children’s park, and the Allendale Schoolyard. The Pittsfield softball field was built over barrels filled with PCB waste. GE had used the city’s landfill as their own toxic waste dump. GE had polluted Silver Lake and Goodrich Pond and both the east and west branches of the Housatonic River. GE had also filled in the land adjacent to the River, now the home of a series of small businesses:

Vinnie Stracuzzi protests his poisoned land, Newell Street

Following extensive remediation of backyards, DEP issued some statistics:

The Housatonic River clean up began adjacent to Building 64. GE workers had told us they routinely dumped barrels of oil and Fuller’s earth on GE land alongside the river. But the EPA was stunned when initial tests revealed how terribly contaminated that section of the river was.

According to the EPA: “In December 1996, EPA issued GE a Unilateral Order to remove highly contaminated sediments and bank soils in the area adjacent to Building 68. As a result, in 1997 and 1998 GE excavated and disposed of 5,000 cubic yards of heavily contaminated sediments (average PCB concentration of approximately 1,534 ppm) from a 550-foot section of the river and 2,230 cubic yards of heavily contaminated bank soils (average concentration of surficial soils of 720 ppm and average concentration of subsurface soils of 5,896 ppm) from a 170-foot stretch of the riverbank. Sediment removal activities were performed “in the dry;” that is by installing sheetpile into the river and diverting the flow of the river around the sheetpile, dewatering small sections, and removing the sediments with standard excavating equipment located on top of the riverbank.”

For those of you unfamiliar with PCB levels and measurements, it might be helpful to appreciate that Massachusetts DEP has determined that the safe level (though there is no safe level) for PCBs for soils in a residential setting is 2 parts per million (ppm). So here the average levels in the river sediment was 5,896 ppm and on the river bank an average of 720 ppm.  

Quite frankly the remediation of the Building 64 site was a resounding vindication for HRI: If  GE’s estimated average concentration of 1,550 parts per million for the sediments in the hot spot  is even close, then at least 10 tons of pure PCBs were removed from the river bed off Building  64.  That would represent more than half of the 39,000 or 40,000 pounds a GE study  estimated  was in the Housatonic River sediments above the Connecticut border in 1983. This is but one  example of a massive failure to adequately represent the scope and amount of contamination.  And it is important to note that Ed Bates’ figures included only the daily loss rate at Power  Transformer. We have learned over the years that there were continuing additional sources of  PCB oil, including at the GE Axe Yard on the plant and leakage of the extraordinary numbers of  barrels in which GE stored its waste oils.

Negotiations and more negotiations between GE and the EPA and MDEP and studies and more studies. And HRI meetings and workshops and official comments and responses to all these studies and proposals. 

Here’s how the EPA summarized the results of these negotiations: “On October 7, 1999, representatives of U.S. Environmental Protection Agency; U.S. Department of Justice; the Commonwealth of Massachusetts Department of Environmental Protection, Office of the Attorney General and Executive Office of Environmental Affairs; the State of Connecticut Department of Environmental Protection and Office of the Attorney General; the U.S. Department of Interior; the National Oceanic and Atmospheric Administration; the City of Pittsfield; the Pittsfield Economic Development Authority and the General Electric Company (GE) reached a comprehensive agreement relating to the cleanup of GE’s Pittsfield facility, certain off-site properties and the Housatonic River …

“The Consent Decree provides for cleanup of the Housatonic River and associated areas, cleanup of the General Electric Plant facility, environmental restoration of the Housatonic River, compensation for natural resource damages, and government recovery of past and future response costs … That agreement will become effective upon entry of the Consent Decree.”

As for the Housatonic River:
Housatonic River – Upper ½ Mile Reach
Objective: to achieve a clean-up that is protective of human health and the environment within the Upper ½ Mile Reach and to prevent further downstream migration of contaminants.
GE will undertake the following in the Upper ½ Mile Reach (Newell Street Bridge to the Lyman Street Bridge):
Remove and restore sediments per final design work plan already submitted by GE and approved by EPA.
Remove and restore bank soils to achieve 10 ppm average in top foot and 15 ppm average at 1-3 feet.
Housatonic River – Next 1 ½ Mile Reach from the Lyman Street Bridge to the Confluence of the East and West Branches (includes sediments and riverbanks)
Objective: to achieve a clean-up that is protective of human health and the environment within the 1 ½ Mile Reach and to prevent downstream migration of contaminants …
EPA will select response actions for the1 ½ Mile Reach after the completion of the EE/CA and after consultation with GE, affected property owners in the 1 ½ Mile Reach floodplain, and the Citizens’ Coordinating Council, and review by EPA’s National Remedy Review Board.
EPA will implement the selected response action. The costs will be shared by GE and EPA with the amount of funding dependent on the overall costs:

• • • GE to pay 100% of costs up to $15 million.
    • For incremental costs between $15 and $25 million, GE will pay 70% of costs and EPA will pay 30%.
    • For incremental costs between $25 and $32.5 million, GE will pay 60 % of costs and EPA will pay 40%.
    • For incremental costs between $32.5 and $40 million, GE and EPA will each pay 50%.
    • For incremental costs between $40 and $50 million, GE will pay 40% of costs and EPA will pay 60% of the costs.
    • For incremental costs exceeding $50 million, GE will pay 30% of the costs and EPA will pay 70% of the costs.
• Several parties are still challenging the Consent Decree in Federal District Court before Judge  Ponsor, including the Housatonic Environmental Action League (HEAL) of Connecticut; the  Schaghticoke Indian Tribe of CT; a group of commercial owners of contaminated  property, including Moldmaster Engineering, Vincent Curro, and Vincent Stracuzzi,  On September 6, 2000, Judge Ponsor ruled in favor of the citizen intervenors, allowing them to  present their concerns about the Consent Decree to the Court. They must submit written  arguments on October 2, 2000, to which the EPA and the Justice Department have until October  23 to respond. Following those arguments, Judge Ponsor will decide whether or not to sign the  Consent Decree.

To get an idea of what the Board was dealing with, here are two different perspectives.

A  YES  VOTE:  BENNO  FRIEDMAN

What we did accomplish: The outcome of the negotiations is a ten point agreement that, in various ways, enhances and strengthens the Decree’s promise to be protective of human and environmental health.  In addition, we now have a written commitment from the EPA to investigate the applicability of remedial treatment technologies for the rest of  the river.  Of equal importance was  the  side  agreement  by  the  lending  institutions  of  Pittsfield  to  create  a  pooll  of funds for residential property owners who might otherwise be unable to borrow on property that still contained some  level of contamination.

What we did not accomplish: The decision to contain and monitor PCBs rather than remove and permanently destroy them, the plastic sheeting in the river, Mt.  Doyle, the mountain of toxic waste 50 yards from the Allendale Schoolyard, the absurdly low figure that General Electric is coughing up to compensate us for damage to the natural resources; the failures of the Decree stand, unaffected by our motion and its withdrawal. Ultimately, the political reality, the unified and nearly universal stamp of approval that had been given the Decree by the agencies, by Pittsfield’s political machine, the business community and by the near unbroken silence of Pittsfield’s citizenry had its effect on our board of directors. Each one of us will revisit that decision innumerable times, measuring our decision against the continuing cleanup and its aftermath.

What is our current position?

Our objections to the Consent Decree still stand. The language and logic supporting our motion is identical to what we filed as part of the public comments to the Decree. The motion’s withdrawal does not signal a change in our approach to the problems associated with PCB contamination. We stand behind our belief that it would be best to remove and render them harmless, rather than contain them under plastic, rock or earth. We are not optimistic about the success of the agencies’ solutions.

However, at this juncture, limited to the specifics covered by the Decree, we have conditionally accepted their methodology. The burden of proof rests on them. It is now the agencies’ responsibility to live up to the terms of the agreement; to monitor the caps, the armoring and the landfills, the river, the floodplain, and the oxbows and to employ the full extent of their regulatory authority, as defined by performance standards and other yardsticks, to revisit and correct any deficiencies that may arise in the methodology that they have chosen. On numerous occasions, agency representatives have asked for our trust. We give it to them, perhaps naively, certainly hopeful but definitely not blindly.

A NO VOTE: MICKEY FRIEDMAN

“I voted against accepting the settlement because I felt that there were too many aspects to the  Consent Decree that compromised public health and the health of the environment.  I wanted our day in court.

“In 1993, HRI published The Housatonic Manifesto, declaring our commitment to  fight for the following: The Housatonic River and its associated tributaries and wetlands shall be  cleansed of all toxins, including PCBs, and there shall be no  discharge of waste into the river.  Broad reaches of land along the river shall be protected by public ownership.

“I  don’t  believe  that the settlement either adequately removes the contamination or compensates the  public.“GE will be leaving massive amounts of PCBs and other toxic contamination in underground  plumes in the East Street, Lyman Street, and Newell Street neighborhoods, beneath the Housatonic River bed and in the river banks, in Silver Lake, and will be adding more toxic  material to Hill 78 and the Building 71  landfill. 

“In return for 70 years of river contamination,  GE will be paying a natural resource damage award of only $25 million, of which approximately  $16 million is a cash payment.“In its wake, GE is leaving a city unable to use its own groundwater, a workforce that many believe has been deeply affected by daily contact with toxic chemicals., and God knows how  many people with PCB blood levels higher than the national background level.

“We will never  know for sure the price our community has truly paid, and no public health official seems  willing to calculate the price we will continue to pay.“Did environmental regulators work hard to craft a settlement they believe in? Absolutely. But  they are overworked and underpaid and operate in a world of very limited resources, under  enormous political pressure from politicians whose elections depend on corporate campaign  contributions, and they face so many other exhausting battles with polluters at other sites.“In this context we are supposed to believe that we have won a big enough victory. The  cranes  are in the river; significant  amounts of PCBs have been removed; and 130 homes have been  cleaned. We have played a major part in all this, but for me it is not enough. I have fought for  treatment, not landfilling; removal not a plastic-lined cap for the river.

• 

  Mile and A Half Remediation – Photograph US Army Corps of Engineers

  “I see Ed Bates and Charlie Fessenden, who worked at Power Transformer and fought valiantly to  learn the truth about how the workers were affected by PCBs and tried unsuccessfully to get an  open and honest occupational health study; Gige Darey who has fought longer than anyone to  truly clean a river he  loves and to fight for public ownership of land along the river; Vinnie Curro and Vinnie Stracuzzi, whose Newell Street businesses were poisoned and rendered  worthless. They have not received justice.

  “Compromise has become our national game; and ordinary working people are the ones who  always have to make the most compromises. GE faced several billion dollars worth of clean up  costs; they settled for spending several hundred million. We may have achieved more than we  dreamed we would have, but that doesn’t mean we’ve won enough. That ís the problem with these kinds of unbalanced battles.

  “It ís discouraging that former allies have turned their energies to the politically easier and less  inflammatory issues of river restoration and seem far more interested in GE’s restoration money  than PCB removal. From my vantage point, it’s premature to talk about restoration until we have  a truly clean river from Pittsfield to Long Island Sound. One of the biggest mistakes we made  was to give into pressure to separate our Housatonic River Restoration project from our PCB  advocacy. It has shifted emphasis from clean up to beautification, and encouraged egotism and  greed. But more than that it works to isolate HRI and makes our continuing advocacy that much  more difficult. It is easy to imagine GE refusing to clean the river through Lenox and Woods  Pond and into Rising Pond.

  “When the HRI Board of Directors authorized Tim Gray to proceed with a legal challenge, and  engage Cristobal Bonifaz, I believed the Board would follow through. I helped to prepare our  legal challenge and believed strongly that we had made a strong and legally sound case. Though  EPA and Department of Justice attorneys many times told us that GE would walk and that Judge  Ponsor wouldn’t consider our arguments, his September 7,  2000 ruling proves otherwise.  I’m  disappointed that we didn’t have the political will to carry on with that challenge, and personally  embarrassed not to be there with the other intervenors.

  Region One Administrator Mindy Lubber at joint press conference with HRI.

  

  After two decades of public advocacy and one decade after the establishment of HRI, our dream of a cleanup began to become reality.

  Here’s a graphic image of the transformation of some of the first half mile:

  

  The Consent Decree called for a series of detailed assessments of the wildlife that reside in the Housatonic watershed, then evaluations of the risks to both the environment and human health. HRI spent a lot of energy working with the EPA team assigned to make those assessment and developed great respect for Susan Svirsky and the consultants working on her team.

  In 2002, HRI science and technical advisor Dr. Peter deFur offered a presentation to the public about some of the risks PCBs posed to both animal and fish species and to humans.
  He stressed the fact that the sediment sampling effort in the Housatonic had focused on MA, with insufficient sampling in CT.

  

  EPA’s Susan Svirsky signaled her commitment to supervise a thorough study of the impact of the PCB contamination on the wildlife inhabiting the River and its habitat:

  

  In  2004, EPA released its comprehensive Ecological Risk Assessment (ERA) for GE/Housatonic River Site, Rest of River, for Public Comment and Peer Review:

  “The Ecological Risk Assessment characterizes the risk posed to animals exposed to PCBs and other contaminants from the GE facility in Pittsfield, MA, while living and/or feeding in the river and floodplain.

  “The report evaluates the fate and transport of PCBs and other contaminants in the river and floodplain and the potential routes of exposure and toxicological effects of PCBs and other contaminants; identifies both aquatic and terrestrial ecological endpoints to be assessed and representative species potentially at risk; and characterizes the risks for these animals. In addition, the ERA qualitatively discusses risks to all species (beyond the rep­ resentative species selected for detailed evaluation) in the river and floodplain. This fact sheet summarizes the conclusions presented in the ERA.”

  

  “Animals are exposed to contaminants through breathing (inhalation); eating, drinking, or preening (ingestion); or by skin contact (dermal). The Exposure Assessment is an estimate of how specific animals may come into contact with chemicals and how often (for example, the number of fish a mink eats from the river). The most important exposure for many animals in the Rest of River is through their diet. A range of likely exposures was developed for representative species based on where they live and what they eat, to estimate the amount and types of contaminants they ingest over time …

  “Within the aquatic environment, there are a wide variety of natural communities and species. The river, stream, and pond habitats support diverse populations of invertebrates, 45 different species of fish and amphibians, as well as the predators that feed upon them like river otter, kingfisher, and osprey. Wetlands such as emergent marshes and wet meadows provide habitat for amphibians, foraging wading birds like American bittern, and other species of birds and mammals. Seasonally-flooded depressions known as vernal pools occur along the river and are used by breeding amphibians and predatory species like snapping turtles, painted turtles, and garter snakes.

  

  “Terrestrial environments in the Rest of River area include five different types of forest communities. These forests support a broad range of animal species, such as wood turtles, wood thrush, rose-breasted grosbeak, blue-headed vireo, Eastern chipmunks, gray squirrels, fisher, and bobcat, to name just a few examples. Because of its unique ecological setting and the diverse natural communities, the Housatonic River is also host to more rare, threatened, and endangered species than most other bioregions in Massachusetts or Connecticut …

  

  You can download and read The Ecological Risk Assessment here:

  44797 EPA ERA

  HRI’s technical advisor, Dr. Peter DeFur, offered the public an analysis of the Ecologicl Risk Assessment and then responded to the ERA on behalf of HRI.

  

A graph showing PCBs in parts per million in relation to the distance from the GE Plant

HRI challenged EPA’s analysis that proclaimed a species healthy because it has managed to survive in a contaminated Housatonic even though individual members of that species were adversely affected by PCBs:

Peter DeFur emphasized how significantly higher the PCB levels in Housatonic River fish were than the levels even EPA considers of concern:

EPA issued its Human Health Risk Assessment:

219190 EPA Human Health Assessment

From EPA’s Fact Sheet on their Human Health Assessment:

• Cancer risks from exposure to PCBs in soil are within the EPA risk range, with the exception of one recreational exposure (adult angler) in one exposure area.
• Noncancer hazard indices (HIs) from soil exposure to PCBs exceeded the EPA benchmark of 1 in some exposure areas for almost all exposure scenarios. Most of these HIs were below 10.
• Cancer risks from exposure to PCBs in sediment were within the EPA risk range at all eight sediment exposure areas.
• Noncancer hazard indices exceeded 1 at four of the eight sediment exposure areas.Direct contact with soils and sediment was assumed to occur randomly across an exposure area, but if people spend more time in a more contaminated part of the property, the risks will be higher. Conversely, if they spend more time in a less contaminated area, the risks will be lower.

SUMMARY OF FINDINGS 

• Potential risks from eating fish and waterfowl exceed the EPA risk range. These activities present a higher risk than direct contact or eating locally grown agricultural products.
• In general, the risks are higher from fish or waterfowl taken closer to the site of the PCB releases, at the GE facility in Pittsfield, than those caught progressively farther downstream.
• For both fish and waterfowl consumption, the cancer risks from PCBs and TEQ greatly exceed EPA’s risk range in both Massachusetts and Connecticut.
• For both fish and waterfowl consumption, the noncancer risk greatly exceeds the EPA benchmark of an HI of 1.
• The HIs for locations in the Massachusetts portion of the study area are higher than those at the Connecticut locations.
• Although the amount of frogs and turtles consumed was assumed to be much less than fish and waterfowl, concentrations of contaminants in these species would also result in risk if consumed in large quantities. 

HRI in its comments to EPA noted the lack of data for Connecticut:

“Although it has been documented that impoundments and slower moving sections of the river in Connecticut have higher levels of PCBs than the faster moving sections, there was no attempt to gather new samples or confirm historical data. Even though the PCB levels are much lower than in the Massachusetts portion of the river there has been a fish advisory for many years in Connecticut. HRI has long maintained that dam sites below Woods Pond, both in Massachusetts and Connecticut, should be considered for remediation. These levels of PCBs might inhibit the future goal of a fishable river.”

Re Fishing on the river:

“On page ES-8 the executive summary states that “there is no evidence of subsistence hunting and angling in Massachusetts at this time; investigation of tribal practices in Connecticut is still underway”.

“There has never been an adequate survey of fishing on the Housatonic River to determine how many people are fishing on the river and how many are eating their catch. HRI has noticed increased activity along the river in the last ten years.

We have included a picture of ice fishing on Wood’s Pond. Woods Pond is one of the most contaminated sections of the “rest of the river”. The picture is a typical day at the pond during ice season. The pond is usually loaded with fisherman every day of the week. We have observed some of these anglers keeping their catch for consumption.”

During the summer months Wood’s Pond also has daily fishing around the dam, bridge abutments, and bass fisherman in their watercraft. We have also noted large numbers of people fishing at Rising Pond, smaller ponds in Lee, cold water stretches of the river where trophy Brown Trout are being caught, and a huge number of anglers in the Connecticut sections of the river. Individuals have been observed catching carp with huge nets and transporting them off site.

One of the issues HRI has stressed from the very beginning is that constant vigilance is required, especially when PCB testing hasn’t been as comprehensive as the community has wished. Whether it’s testing residential properties, PCB contamination of Goodrich Pond and more comprehensive testing of the Housatonic River, it’s important to demand more testing. This became very apparent when even after two clean ups, more PCB contamination was discovered at the Allendale School:

The Berkshire Eagle reported on December 16, 2007: “PITTSFIELD — A new round of testing has discovered PCBs in a schoolyard that has been at the center of controversy surrounding the ongoing environmental cleanup.

“The U.S. Environmental Protection said soil samples taken from a corner of a field at Allendale Elementary School revealed unacceptable PCB levels 1 foot under the surface. Although the agency said the pollution poses no health risk to pupils, faculty or nearby residents, a contractor is expected to begin a cleanup tomorrow.

“The news emerged as the Allendale community continues to grapple with the existence of Hill 78 — a 5.6-acre PCB landfill that sits 40 feet from the schoolyard. The dump was a provision of the PCB settlement — finalized in 2000 — among the EPA, GE, Pittsfield and several other state and federal agencies. As the landfill has grown taller, it has become more controversial, with teachers and nearby residents complaining that it presents a health risk to the Allendale neighborhood.

“Dean Tagliaferro, the EPA’s project manager for the Pittsfield cleanup, said the recently discovered pollution in the Allendale schoolyard is unrelated to Hill 78. Instead, he said, it appears to be contaminated dirt used to level the field, similar to the polluted dirt on which Allendale was built in the 1950s.”

EPA January 2011 Site Update

“This Fact Sheet summarizes some of the important properties of PCBs as they relate to fate and transport in the Rest of River and shows how the Housatonic River Model Framework is being used to evaluate remedial alternatives. It also provides a concise summary of the effects of PCBs on human health and ecological receptors as demonstrated by the peer-reviewed Human Health and Ecological Risk Assessments. General Electric recently submitted their Revised Corrective Measures Study (RCMS) Report for the Housatonic River Rest of River site. EPA will use the information provided in the CMS, along with other information, including citizen and other stakeholder comments, to develop EPA’s preferred approach to addressing PCB contamination in the river and floodplain. EPA welcomes and encourages input from stakeholders and believes that providing this information in a concise fact sheet format will be of use in their review of GE’s Revised CMS and EPA’s subsequent proposal.
• PCBs are classified as probable human carcinogens.
• PCBs are associated with numerous non-cancer health effects, including neurological, immune, endocrine and reproductive issues.
• PCBs are known to cause adverse effects on numerous Housatonic River ecological receptors, including fish eating mammals, some birds, fish, amphibians, and benthic invertebrates. 
• PCBs are present in large quantities in river sediment and floodplain soil; estimates range from between 100,000 to nearly 600,000 pounds of PCBs.
• The rate of natural degradation of the type of PCBs in the Housatonic River is very slow — on the scale of hundreds of years.
• Currently, more than 50% of the PCBs that enter Woods Pond go over the dam and continue downstream, even into Connecticut. EPA will be proposing an approach to clean up the PCBs in the Rest of River to protect human health and the environment after the public provides their comments to EPA on GE’s Revised Corrective Measures Study.

“This Fact Sheet reviews what PCBs are and how they move through the environment, and summarizes what EPA knows about the PCBs in the Housatonic River system and their effects. 

“These studies were intended to provide guidance on how best to proceed with the clean up of the Rest of the River. By charting the extent of the depth and width and concentration of the contamination of both river sediment and bank soil, and analyses of both the effects of PCBs on human health and the environment EPA could better respond to GE’s new recommendation for the Rest of River clean up, its Corrective Measures Study.”

You can download and read this Fact Sheet here:

Jan2011EPAFactSheet477424

Sometimes it is only with the perspective of time that you realize the critical importance of an event, a turning point in a process you didn’t quite appreciate at the time. Public concern and the growing desire to more fully participate in the clean up decision may well have played an important part in the decision to establish a Charette process the EPA organized for the pubic in March 2011. Three Mini-workshops were scheduled, led by leading experts in the most relevant aspects of the clean up process.

Mini Workshop One • Why Working with River Processes Matters 
Part 1: Introduction; History of the River; Geomorphology 
Part 2: Ecological Characterization; PCBs 
Public Question & Answer Session with Full Panel of Speakers 
Mini Workshop Two • Getting the Facts on PCBs: Human Health Risks, Ecological Risks, 
and PCBs 
Part 1: Introduction; PCB Distribution, Fate & Transport; Human Health Assessment 
Part 2: Ecological Risk Assessment; Why Use Models for the Housatonic River 
Public Question & Answer Session with Full Panel of Speakers 
Mini Workshop Three • Exploring Alternatives for Cleanup: Remediation, Restoration,
Alternatives, and Environmentally Sensible Remediation Concepts 
Part 1: Introduction; Remediation Technologies; Ecological Restoration 
Part 2: Alternatives and Technologies; Environmentally Sensible Remediation 
Public Question & Answer Session with Full Panel of Speakers Public Charrette (Selections) 

Months later in May 2012, the U.S. Army Corps of Engineers issued a report on the process:

The authors explained: “At this important point in the Rest of River remedy selection process, EPA determined that in order to incorporate the public’s concerns into its decision-making process, it needed a more in-depth appraisal of the spectrum of public understanding and opinion on the technical and policy aspects of the alternatives under consideration …  Specifically, EPA identified three needs: 1) to learn from stakeholders what questions on complex technical issues remained in their minds; 2) to gather more meaningful input from stakeholders on remediation options for EPA to consider; and 3) to learn what strategies and activities for public engagement had been working and which needed improvement, and particularly if more engaged strategies like workshops and charrettes would be effective. (Emphasis added.) …

“EPA sought information in three particular areas:1) Identification of stakeholders’ needs for additional information on technical issues: What information did stakeholders feel they needed to make informed decisions on the cleanup? About what issues were they expressing the need for clarity?2) Identification of core interests of the community: Which issues and concerns did stakeholders feel were most important? How did stakeholders value the balance of ecological, social, and economic impacts of proposed cleanup alternatives?3) Stakeholders’ ideas on how to best engage them in the cleanup decision process: What strategies and activities for public engagement were working and which needed improvement? …

“The other predominant concern of stakeholders was disposal of contaminated sediment/soil: some were comfortable with the prospect of a new landfill(s) within the area; others reported struggling with the ethical dilemma of shipping contaminated soil to other communities and making it their problem; and the majority expressed adamant opposition to a landfill in any local community, whether theirs or another.

“With regard to the Proposed Alternatives, the responses indicated wide differences in attitudes regarding the appropriate extent of remediation and how well any of the Proposed Alternatives would achieve the desired PCB risk levels. On the one hand, many respondents expressed doubt that the costs of remediation were worth the benefits or that the risks due to the contamination were greater than the risks associated with removal. On the other hand, many respondents asserted that comprehensive, total PCB removal or “as much as possible” was the appropriate action. Most respondents indicated leaning toward a position in between, that is, favoring remediation that involves some level of sediment/soil removal and replacement; yet, stakeholders’ unanswered questions prevented their taking definitive positions on where within that spectrum they believed the optimal solution lay. Within this “in between” spectrum, some respondents advocated avoiding various types of areas that they deemed special, and several respondents favored a small scale, site-specific approach in which the remediation of the River is considered section by section rather than as a single entity. In any effort involving river bed and river bank alteration, many would like to see something different from that of the first two miles of remediation in Pittsfield (though respondents did not specify what “different” meant). Many noted a particular interest in the consideration of emerging remediation technologies that remove PCBs without significant sediment/soil removal and replacement, calling for EPA to include such technologies in its considerations of a proposed remedy, if not in initial remediation efforts, then in future stages. Finally, many stakeholders ardently supported the incorporation of what they termed adaptive management, which they characterized as a process in which the cleanup is accomplished incrementally and in small sections, applying “lessons learned” to subsequent efforts, and including continual community input—all of which, some believed, would better allow the introduction of emerging technologies.”

Richard DeNitto addressed a concern that many in Berkshire County shared, a concern influenced in part by GE’s campaign to convince people a clean up would be worse than remediation, and that cleaning the river would be akin to destroying the meander of the river and digging a straight ditch. DeNitto emphasized the fact that the River, and rivers throughout out the nation had be changed many times in the course of the centuries:

“Further significant changes occurred during the 1800s when railroads arrived and agriculture became more prevalent in the valley. It was during this period that the River channel, which naturally seeks equilibrium through the development of meanders, was extensively modified and straightened along many sections of the River. Actions like these created larger tracts of contiguous properties for farming and allowed the installation of railroad beds. The clearing of rivers and rechannelization has a long history in the Northeast, with many local governments passing laws and ordinances allowing local businesses and towns to clear materials such as boulders, and even to use dynamite to modify rivers. For instance, in the 1940s, the East Branch of the river was straightened for flood control through its once natural course just south of East Street in Pittsfield, eliminating a number of River meanders and side channels. Today the effects of these changes and the subsequent natural evolution of the River is evident when comparing older maps and present-day topographical surveys. Portions of the River are clearly shown to have been straightened and/or moved.

“All of the human activity that has occurred over the past several hundred years, from the simple fish weirs of Native Americans to logging, industrialization, and rechannelization, has changed the River and surrounding ecology, so that what exists today, while appearing to be a natural pristine environment, is actually a disturbed river system trying to naturally restore itself. In many cases since the 1800s (through the mid-20th Century), the course of the River has naturally returned, albeit over several decades, to a more meandering pattern. Since the 1950s few additional changes to the River’s course have occurred. Also, in many areas new woodlands have replaced the once-deforested terrain, and many species of plants and animals have returned. The history of the River makes it clear that today’s landscape and surrounding natural environments are not the same as existed thousands of, or even one hundred years ago … 

Presentation Three: Ecological Characterization

John Lortie, Stantec Consulting Services, Inc. 

“A good example of ecosystem resilience is found upstream on the East Branch where PCBs in sediment and bank soil were remediated approximately 70 years after much of the area was cleared when the river was channelized. The aquatic insects in the River reestablished themselves quickly following cleanup and with a community that was more diverse than before remediation, and reflective of nonpolluted rivers.

“At the same time, however, there are clear indications that the system downstream of the confluence, while appearing normal and healthy, is experiencing stress due to elevated concentrations of PCBs. Chief among these is the near-complete absence of resident mink and otter populations in spite of what otherwise would be optimal habitat. Although other populations, such as invertebrates, fish, and amphibians appear healthy, site-specific studies for the ecological risk assessment have shown that these taxonomic groups are experiencing reproductive and other problems due to the effects of PCBs, problems that are not always evident when observing individual adults. Eighteen natural communities, defined as recurring assemblages of plants, animals, and their habitat showing minimal effects from human intervention, were identified in the area of the River and floodplain between the confluence and Woods Pond; an additional 7 natural communities were identified in the reference areas. The communities identified in the study area included a single lacustrine (lake) community (Woods Pond), 3 different riverine communities distinguished by the gradient of the River, 9 palustrine (wetland) communities, and 5 terrestrial communities. The 3 most common natural community types, each comprising over 80 hectares (approx. 200 acres) of area, were low-gradient stream, shrub swamp, and transitional floodplain forest. Maps showing the location and extent of each community type were prepared, as were example transects across different areas of the floodplain showing the typical interrelationships of the communities.” (Emphasis added.)

Presentation Four: What Are PCBs and How Do They Behave in the Environment?
 Richard A. McGrath, The Isosceles Group, Inc. 

“The PCBs used at GE’s Pittsfield facility and now found in the Housatonic River and floodplain are on the “heavier” end of the range – mostly Aroclor 1260, with some !roclor 1254. They are very different from the “lighter” !roclors (mostly 1242) present in the HudsonRiver. Different Aroclors behave differently in the environment, which is one of the reasons why it is difficult to make comparisons between the PCB contamination at different sites.

Presentation One: PCB Distribution, Fate, and Transport 
Edward Garland, HDR HydroQual

“The Housatonic River is a complex and ever-changing environment. PCBs in the River have been extensively studied as part of a wide range of detailed site investigations, risk assessments, and modeling studies. A primary purpose of all these studies was to help us understand where PCBs occur in the River and floodplain and how much is there (distribution), how they move through the River and floodplain (transport), and where they go over time (fate). In addition to helping better understand the River and its complexities, this information is being used by EPA to select the best possible cleanup approach for the Rest of River. Thousands of PCB samples and other measurements have been collected from River water, sediment, floodplain soils, and fish. Data were also collected to measure riverbed, riverbank, and floodplain characteristics. From these data, EPA learned that some riverbanks upstream of Woods Pond are not stable and are eroding. When banks erode, they put PCBs back into the water and the sediment bed. Riverbanks account for nearly half of all PCBs entering the River. The data show that the River floodplain is heavily contaminated with PCBs because when floods occur, PCBs move onto the floodplain. The data also show that PCBs are present throughout the riverbed at concentrations that vary widely over very short distances (i.e. feet). This means that PCB contamination is extensive and that there are no hotspots (small areas that are large PCB sources). “

“PCBs occur deep in the riverbed as well as at the bed surface. Sediment transport is very active, so PCBs deeper in the riverbed are not always permanently buried. Like riverbanks, the riverbed is subject to erosion and deposition. Sediment eroded from the bed carries PCBs into River water where it is transported downstream. Similarly, sediment that settles brings PCBs back to the bed where they may be picked up and transported downstream at a later time. Several feet of erosion can occur over time, re-exposing PCBs once located deep in the bed. This process was confirmed by carefully surveying River crosssections at many locations over several years.”

Presentation Two: Human Health Risks
Donna J. Vorhees, Sc.D, The Science Collaborative 

WHAT ARE THE RISKS FROM PCBs IN… 
Soil?

• • Nearly all cancer risk estimates are within or below the acceptable EPA risk range
  • Noncancer hazard indices (His) exceed the EPA benchmark of 1 in some exposure areas for almost all exposure scenarios

Sediment? 

• • • Cancer risk estimates are within or below the acceptable EPA risk range in all 8 sediment exposure areas 
    • Noncancer hazard index is exceeded in 4 of the 8 sediment exposure areas 

 

Fish and waterfowl? 

• • • Cancer risk estimates are above the acceptable EPA risk range 
    • Noncancer hazard indices are above the EPA benchmark 
    • Cancer risk estimates and noncancer hazard indices are higher from fish or waterfowl sampled closer to the GE facility than those collected farther downstream 

Agricultural products? 

• • • No cancer risk estimates are above EPA’s acceptable risk range and no noncancer hazard indices are above EPA’s benchmark for home gardens, wild edible plants, and currently operating commercial farms, but this conclusion could benchmark for home gardens, wild edible plants, and currently operating commercial farms, but this conclusion could change if farming locations and practices are altered in a way that involves more intensive or frequent exposure to contaminated soils 
    • Depending on farm management practices, commercial and backyard farming in some floodplain areas would be associated with cancer risk estimates above EPA’s acceptable risk range and noncancer hazard indices above EPA’s benchmark 

The assessment of PCB toxicity to wildlife is grounded in published and peer-reviewed science, with thousands of studies spanning several decades of research. Based on this information several broad conclusions can be drawn regarding the harm caused by PCBs to numerous animals:

• Organisms are often sensitive to PCB toxicity during early life stages, with malformations and deformities observed in the young of many species due to PCBs; often these effects are severe enough to result in premature death of the animal
• The degree of harm depends on how sensitive an animal is and how much exposure to PCBs occurs. As expressed by the “father of toxicology,” Paracelsus, the “dose makes the poison.”
• The entire PCB mixture is important, because non-dioxin-like PCBs cause effects to animals, including impaired reproduction and development
• Of the 209 PCB congeners, a few of them are particularly toxic because they cause responses similar to dioxin.

• In highly contaminated reaches of the River, some species are absent that should be present given the habitat quality. Others are present, but at reduced numbers from what should be found.
• The ecological potential of the system is not currently being realized due to PCB effects.
• If other stressors increase, whether local influences such as habitat fragmentation or global influences related to climate change, the ability of populations to withstand PCB stresses may decline. 

Not all animals respond in the same way to PCBs. Animals have different behaviors that influence their exposure to PCBs, such as feeding preferences and ranges of movement. In addition, individual species have different biological characteristics that affect how PCBs are handled in the body. As a result, there is a range in sensitivity, with some animals resistant to effects, and others affected by very low environmental exposures.The abundance and health of one type of animal should not be taken as an indication that all other types are unaffected and others affected by very low environmental exposures.

At Newell Street in Pittsfield, photographs show that vegetation along the River was removed in both the 1940s and 1990s. These photos demonstrate that the River can reestablish channel and riparian function relatively quickly following first the clearing in 1940 and then remediation in 1999. Active ecological restoration can accelerate the full recovery from remediation. As shown in the photographs below and as observed, not only was there a recovery following the river channelization efforts in the 1940’s, but a decade after remediation in 1999, significant vegetative growth and recovery again occurred at Newell Street with active restoration. 

Presentation Three: Alternatives and Technologies

Bob Cianciarulo, EPA Chief, Massachusetts Superfund Section

 

Presentation Four: Environmentally Sensible Remediation Concepts

Susan C. Svirsky, EPA Project Manager, Rest of River

EPA has begun its decision making process for the cleanup of the Housatonic “Rest of River” considering the RCMS, other relevant information, and public input. Under the terms of the Consent Decree, EPA must evaluate all cleanup alternatives against 9 criteria in selecting its proposed alternative: 

General Standards 

• Overall protection of human health and the environment 
• Control of sources of releases 
• Compliance with Applicable or Relevant and Appropriate Requirements (ARARs) Selection Decision Factors Long-term reliability and effectiveness 
• Attainment of Interim Media Protection Goals (IMPGs, or cleanup goals) 
• Reduction of toxicity, mobility, volume 
• Short-term effectiveness 
• Implementability 
• Cost 

Cleanup alternatives range from taking no action to other alternatives with different levels of active remediation. EPA believes that if an active remedy is chosen, it then must be implemented using environmentally sensible remediation concepts. Some of these concepts are discussed below. 

PCB Contamination and Risk Reduction 

PCBs in the Rest of River and associated floodplain pose a risk to human health and are harming many species of wildlife. These risks and harm will continue as the PCBs are not degrading or being permanently buried in the foreseeable future. 

River Processes

The Rest of River has been altered by humans in the past for agriculture, industry, transportation, and other uses. These alterations included straightening or relocating the River channel, altering the connection of the River to the floodplain, clearing the floodplain, and changing the load of sediment washing into the River. The River is seeking to regain its equilibrium from the past activities. Any cleanup must work with the River and floodplain, not against it. 

Species/Habitats of Concern and Cultural Resources 

Any active cleanup must be implemented with care for both the issue of species and habitats of concern and the potential for impacts to cultural resources such as Native American relics. With regard to the species of concern, any cleanup should be implemented in such a manner as to avoid impacts to the species of concern where practicable, or otherwise minimize or mitigate any impacts. Any cleanup must also have a component whereby cultural resources are researched, and during implementation any resources that are identified are documented and/or preserved.

Downstream Impacts

PCB concentrations are highest in the first 30 miles of Rest of River, with concentrations from the Confluence to Woods Pond similar to those originally measured in the 1 ½ Mile Reach, which is located above the Confluence, and has since been cleaned up. However, PCBs continue to impact the River further downstream below Rising Pond, resulting in fish consumption advisories in both Massachusetts and Connecticut, concerns regarding sediment management associated with structures in the River such as dams and bridges, and degraded water quality that has resulted in the River being on Connecticut’s Clean Water !ct List of Impaired Waters. During any active remediation it is expected that there would be some short-term impacts associated with resuspension that may potentially be measurable outside the area to be remediated. Appropriate engineering controls must be used to ensure that any such impacts would be minimized and do not result in a permanent degradation of the River quality downstream.

Quality of Life

Implementation of any active remedy must be done in a way that minimizes any adverse economic impacts to the community as well as impacts to nearby property owners. Careful consideration must be given to optimize the routing of vehicles or other means of transportation. A mechanism must be in place for interaction with and input from affected property owners and other stakeholders. Thought must be given to allow for recreational opportunities to continue during the remediation.

Other Considerations

Implementation of any active remedy must be approached with a surgical mindset. Any cleanup and associated infrastructure (such as roads, staging areas, equipment, etc.) must be designed to have the smallest footprint possible, and impacts to any given area be minimized in duration.  

Thought should be given within any risk reduction strategy if there are circumstances where cleanup may have a disproportional impact relative to risk to address some specific contaminated areas, if risk reduction can be obtained in other, less intrusive locations. 

Habitat restoration must be considered hand-in-hand with any cleanup design, with consultation with stakeholders, oversight by professionals, and tailored to the specific habitat that is affected. 

Restoration goals and timeframes need to be clearly communicated among all parties, and monitoring the success of restoration efforts is essential. 

Adaptive Management 

As any active cleanup would take place over a period of years, this would provide the opportunity to stage the design and implementation to allow for a critical review of the work and the ability to incorporate any lessons learned in the subsequent work. This would also provide for the opportunity to consider new technologies and/or equipment if they become available. 

You can download and read the Mini-Workshop materials here:

518353EPAMiniApril2011RiverProcess

518354EPAMiniApril2011FactsPCBS

EPAApril2011MiniRemediation, Restoration,

Bear with this long, often detailed discussion of the Corrective Measures process, because it began the basis for a many years prolonged battle over what the clean up of the Rest of River would look like. First there’s an explanation of what the EPA required of General Electric and then a discussion of how GE laid out the alternatives, and then its clear preferences.

“EPA is conducting its  review of GE’s Corrective Measures Study (CMS). The purpose of the  CMS is to evaluate potentially applicable technologies and cleanup alternatives for the Rest of  River to reduce risk to human health and the environment from PCBs, and to prevent further  downstream transport of PCBs.

“There are three categories of actions being evaluated:

• • • Management of in-place sediment and riverbank soil,
    • Management of in-place floodplain soil, and
    • Treatment and disposition (materials that have been removed).

“In addition, the CMS contains GE’s recommendation as to which alternative it believes best meets the criteria and objectives.

“As described on the back page, EPA will be reviewing GE’s CMS, including GE’s recommendation and input received from the public, before EPA develops and proposes its preferred remedial alternative for public comment ..

“Technologies retained in the initial screening that were considered in the CMS are described  below.  Many of these technologies can be applied to in-place sediment,  riverbanks,  and floodplain soil.  The treatment and disposition technologies apply to material after it has been  removed from the river, banks or floodplain. All alternatives (except No Action  [NA])  possibly will require engineering and/or institutional controls. All alternatives include a restoration  (except NA and  MNR), operation,  maintenance  and  monitoring  component  (except  NA).

“No Action The No Action (NA) response does not include any active or passive remediation or long-term monitoring. EPA requires that a No Action response be considered at every site.

“Engineering/Institutional Controls There are four general types of institutional controls to reduce exposure to humans 1. Governmental (e.g., fish advisories);  2. proprietary  (e.g., deed restriction);  3. enforcement (e.g., provisions inthe CD); and 4. informational (e.g., public education).

“Monitored Natural Recovery (MNR) MNR is a response action that relies on ongoing, naturally occurring processes (including physical, biological, and/or chemical mechanisms) to contain, destroy, or otherwise reduce the bioavailability or toxicity of contaminants in sediment, with monitoring to assess the rate of recovery. MNR may also include enhancements, such as thinlayer capping, to accelerate the rate of recovery.

“Removal Removal techniques include mechanical excavation in the “dry” as was performed for the 2 miles of the East Branch that have already been cleaned up, or removal in the “wet,” commonly referred to as dredging. Excavation in the dry is typically performed using conventional excavation equipment. Dredging may be conducted using either mechanical or hydraulic equipment. Removal of sediment or bank/floodplain soil often is coupled with backfilling using clean material to meet original elevations and contain any residual PCBs, and also requires one or more treatment and disposition alternatives for  implementation.

“Capping This technology requires the placement of a layer of clean material over the inplace contaminated sediment/soil, at a thickness suitable to create a clean bioavailable zone and to isolate the contaminated material. Depending on site -specific objectives, the cap design may include materials to enhance the isolation  (e.g., geotextiles)  or sorption of contaminants), and a protective  layer (e.g., armor stone) to prevent erosion.

“Bank Stabilization Stabilization of the banks is required when the potential remains for erosion of in place contaminated bank soil. Stabilization techniques range from bioengineering to hard engineering  (e.g., armor stone), and the use of a particular technique is dependent on bank slope/stability and water velocities.

Removal – Ex-Situ  Stabilization  This technology is being included in the evaluation for  potential use in sediment/soil handling as a means of dewatering, reducing the leachability of  contaminants, or to modify the structural properties of the material. This involves mixing the  sediment/soil with a stabilizing agent (e.g., Portland cement, lime, kiln dust, fly ash).

Chemical  Extraction Mechanical separation methods combined with an extraction fluid can  potentially be used to desorb PCBs from sediment/soil after removal, resulting in a large reduction in the volume of contaminated material. At EPA’s request, GE is performing a study of  the effectiveness and implementability of this technology on site-specific sediment and soil  samples. The potential for reuse of the material after treatment is a significant consideration with  this technology.

Thermal Desorption Thermal desorption separates the PCBs from the sediment/soil by adding  heat to the material. The heat then volatilizes the PCBs, which are then condensed as a liquid, captured, and/or destroyed in an afterburner, resulting in a large reduction in the volume of contaminated material. The potential for reuse of the material after treatment is a significant consideration with this technology.

Confined  Disposal  Facility (CDF) CDFs involve the placement of contaminated sediment/soil  in an engineered structure constructed in a nearshore environment in such a way as to  permanently isolate the PCBs from the environment.

Upland  Disposal  Facility After dewatering, sediment/soil is placed in an engineered upland  landfill typically constructed in close proximity to the river but outside the floodplain. The  facility is engineered appropriately to permanently isolate the PCBs.

Off-Site Disposal Facility After dewatering and pretreatment to achieve other requirements of  the disposal facility, sediment/soil would be transported to an existing, licensed off-site landfill.

Evaluation Criteria Used in the CMS 
Remedial Action Objectives (RAOs) are specified in the CMS. 
RAOs are broad statements of the objectives of the remedial action. There are three RAOs for the CMS that can be summarized as: 
• Reduction of risks to human health 
• Reduction of risks to the environment 
• Elimination/minimization of long-term downstream transport of PCBs and control of sources of release to the river 

There are three General Standards specified in the Permit: 
1. Overall Protection of Human Health and the Environment
 2. Control of Sources of Releases (how each alternative would reduce/minimize possible further releases) 
3. Compliance with Applicable or Relevant and Appropriate Federal and State Requirements (ARARs) 

In addition, there are six Selection Decision Factors specified in the Permit: 

1. Long-Term Reliability and Effectiveness 
• Magnitude of residual risk 
• Adequacy and reliability 
• Potential long-term adverse impacts on human health and the environment 
2. Attainment of IMPGs 
3. Reduction of Toxicity, Mobility, and Volume 
• Treatment process used and materials treated 
• Amount of hazardous materials destroyed or treated • Degree of expected reduction in toxicity, mobility, or volume 
• Degree to which treatment is irreversible
 • Type and quantity of residuals remaining after treatment 
4. Short-Term Effectiveness 
5. Implementability 
• Ability to construct and operate the technology 
• Reliability of the technology 
• Regulatory and zoning restrictions 
• Ease of undertaking additional corrective measures, if necessary 
• Ability to monitor the effectiveness of the remedy 
• Coordination with other agencies 
• Availability of suitable on-site or off-site treatment, storage, and disposal facilities and specialists 
• Availability of prospective technologies 
6. Cost 
• Capital costs •
 Operating and maintenance costs 
• Present worth costs 

“GE’s Recommended Alternatives

“As required by the RCRA Permit, GE presents in the CMS Report its conclusions as to which remedial alternatives, in its opinion, are “best suited” to meet the Evaluation Criteria described on Page 4. GE has concluded that the combination of alternatives SED 3, FP 3, and a local upland disposal facility is best suited to meet the criteria.

“These alternatives involve the removal of approximately 167,000 yd ³ (~250,000 tons) with capping of river sediment and bank soil over 42 acres of the river between the Confluence and the vicinity of New Lenox Road (approximately 5 miles), MNR in Reach 5B (approximately 2 miles) and the upper 1.8 miles of Reach 5C, and placement of a thin-layer cap in an additional 97 acres of river in the downstream portion of Reach 5C (approximately 1.5 miles) and Woods Pond, with MNR in the remaining areas. In addition, these alternatives include removal of approximately 60,000 yd ³ (~90,000 tons) of soil from 38 acres of the floodplain. The river sediment and bank and floodplain soil removed would be contained in an upland disposal facility located in an area near the river but outside of the 100-year floodplain. GE estimates that following design and site preparation, these alternatives could be implemented within 10 years at a cost of approximately $184 million. In GE’s discussion of its recommended alternatives, GE states that “given GE’s reservation of rights [in the CMS Report], this Report does not constitute a proposal to implement these alternatives.” (Emphasis added.)

“This is GE’s recommendation. As described on the following page, EPA will be reviewing GE’s CMS, including this recommendation and input received from the public and state agencies, before EPA develops and proposes its preferred remedial alternative for public comment.

“EPA will evaluate the CMS developed by GE and GE’s recommended alternative, considering the criteria described on page 4, and input received from the public and state agencies. EPA may then approve, conditionally approve, or disapprove the CMS. If EPA conditionally approves the CMS, GE will need to revise the CMS to meet EPA’s conditions and/or requirements. If EPA disapproves the CMS, then GE must address the deficiencies or EPA will make the modifications to the CMS.

“Based upon the information provided in the CMS, EPA will then develop a preferred remedial alternative or set of alternatives (Preferred Alternative). This Preferred Alternative will undergo Regional and National EPA review for consistency with remedies implemented or proposed for other hazardous waste sites and the degree of achievement of the criteria.

“After these reviews, EPA will propose the Preferred Alternative for formal public comment as a draft modification to the RCRA Permit. Following closure of the public comment period, EPA will consider the comments received and issue a final decision and a Responsiveness Summary

“Prior to issuing the final remedy decision, as required by the Permit, EPA will notify GE of the final decision, and GE has the right to invoke administrative dispute resolution. Upon resolution of GE’s dispute (if invoked), EPA will issue a modification to the Permit. This final cleanup decision is then subject to appeal by GE and the public for review by EPA’s Environmental Appeals Board (EAB) and subsequently the U.S. Court of Appeals. During appeals, there are provisions for design of the remedy to take place as the appeals progress.

“Upon completion of all appeals, GE is required to implement and pay for the remedial action under CERCLA authority and the Consent Decree.”

A January 2014 letter from EPA Project Manager Susan Svirsky to GE summarizes some of the problems EPA had with GE’s proposal:

“EPA has completed its review of GE’s report entitled Housatonic River – Rest of River Revised Corrective Measures Study Report (hereinafter “RCMS”) submitted October 11, 2010. GE submitted the RCMS in response to EPA’s April 13, 2007, Conditional Approval of the Corrective Measures Study Proposal, EPA’s January 15, 2010, Conditional Approval of GE’s Work Plan for the Evaluation of Additional Remedial Alternatives, as well as other related Corrective Measures Study correspondence between EPA and GE. 

“The RCMS submittal includes factual and technical information that is consistent with the Corrective Measures Study requirements pursuant to the Reissued RCRA Permit, and, when supplemented by other information, contains sufficient technical analyses and information for EPA to proceed with preparing a draft permit modification for corrective measures in the Rest of River. However, the RCMS also includes multiple assertions, characterizations, conclusions and recommendations with which EPA does not necessarily agree, including but not limited to the following examples:

• • • the significance of risk to humans and ecological receptors from exposure to PCBs; 
    • the risk management goals of EPA regulations as they relate to consumption of fish and other biota; 
    • natural recovery and the speed at which it is occurring;
    • the degree of harm to the ecosystem from remediation;
    • the degree to which ecologically sensitive implementation principles and techniques, including avoidance, mitigation and restoration, are applicable to all alternatives; 
    • the interrelationship between river geomorphic processes and remediation techniques;  interpretation of applicable or relevant and appropriate requirements (ARARs);
    • the role of institutional controls; and
    • other assertions, characterizations, conclusions or recommendations provided by GE in the RCMS, including but not limited to those referenced in the executive summary, the evaluation of individual alternatives, the comparative evaluation of sediment and floodplain remedial alternatives, the detailed analysis of remedial alternatives for treatment and/or disposition of removed sediments and soils, and GE’s conclusions and recommendations as to the corrective measure or combination of corrective measures which, in GE’s opinion, is best suited to meet the General Standards for Corrective Measures, and Selection Decision Factors …

“Pursuant to Paragraph 80 of the Consent Decree, and the Reissued RCRA Permit, which is Appendix G to the Consent Decree, EPA approves the RCMS subject to the following condition: For purposes of the final CMS Report, it shall be recognized that EPA does not necessarily agree with the assertions, analyses, conclusions or recommendations provided by GE in the RCMS, including, but not limited to the examples provided above. 

“The above-stated condition does not provide for GE to resubmit or modify any CMS related documents. Based on the RCMS, the above-stated condition, and other information, the CMS Report has been satisfactorily completed in accordance with the Reissued RCRA Permit.” 

Finally EPA presented its analysis of a series of possible scenarios of remediating river sediments, floodplain soils, and five possible different treatment, disposal strategies. Then laying out the reasons for its preferred remedy. In retrospect it’s obvious that the EPA was predisposed to find problems with the most comprehensive cleanup and problems with treatment.

Here are excerpts from EPA’s June 2014, “Statement of Basis for EPA’s Proposed Remedial Action for  the Housatonic River “Rest of River:”

“Consistent with actions at other contaminated sediment sites, this Proposed Remedial Action relies on a combination of cleanup approaches that apply to specific “reaches” of the river, as described below: 
• Removing and capping PCB-contaminated sediment in some reaches in the Housatonic River. 
• Monitoring natural recovery in some reaches in the Housatonic River.
• Removing PCB-contaminated soil from some areas in the 10-year floodplain adjacent to the river, including vernal pools, and restoring affected areas.
 • Stabilizing PCB-contaminated erodible river banks that are a source of PCBs that could be transported downstream, focusing on the use of bioengineering techniques in restoring any disturbed banks. 
• Transporting and disposing of all excavated contaminated soil and sediment off-site at existing licensed facilities approved to receive such soil and sediment.
• Placing restrictions (Institutional Controls) on eating fish, waterfowl, and other biota where PCB tissue concentrations pose an unacceptable risk unless/until such consumption advisories are no longer needed, as well as restricting other activities that could potentially expose remaining contamination.
• Establishing procedures to address PCB contamination associated with future work.
• Maintaining remedy components and monitoring over the long-term to assess the effectiveness of the cleanup and recovery of the river and floodplain.
• Establishing mechanisms for additional response actions if land uses change (e.g. dam removal, changes in floodplain land use)• Conducting periodic reviews following the cleanup to evaluate the effectiveness and adequacy of the cleanup in protecting human health and the environment.

“Development of Cleanup Alternatives
“Eleven alternatives were developed for addressing contamination in sediment and riverbanks. The 11 alternatives are termed SED 1 through SED 9, SED 9 MOD, and SED 10. These alternatives encompass a broad range of options from no action to the removal of over 2 million cubic yards of sediment and up to 35,000 cubic yards of riverbank soil. Ten alternatives (FP 1 through FP 4, FP 4 MOD, and FP 5 through FP 9) addressing PCB contamination in floodplain soil in the Rest of River were also developed. All of the floodplain alternatives involve removal of different volumes of contaminated floodplain soil and placement of backfill except FP 1, the no action alternative.
“As part of the site study, a range of potential cleanup goals, known as Interim Media Protection Goals (IMPGs) were developed as one of the factors to use in the comparison of remedial alternatives. In addition to the IMPGs, it is important to note that certain specific numerical Performance Standards, which may differ from the IMPGs, are being proposed in the Draft Modification to the Reissued RCRA Permit to be met as part of the remedy. To develop a range of cleanup alternatives, different options for cleanup goals were used to address potential cancer risk to human health. The cleanup goal options for human health used by EPA to develop alternatives are within the range of what EPA considers to be protective. Human health cleanup goals are based upon reducing risk to within acceptable levels (to within EPA’s 10-6 to 10-4 cancer risk range and/or non-cancer Hazard Index of one). Similarly, a range of IMPGs for ecological receptors were also developed. The Performance Standards and corrective measures for EPA’s Proposed Cleanup Plan are discussed generally in the section entitled “A Closer Look at EPA’s Proposed Cleanup Plan” and outlined in specific terms in the Draft Permit …

Combined Sediment and Floodplain Soil Alternatives
The remedy for the Rest of River will necessarily involve both sediment and floodplain components. In order to more easily explain and compare the alternatives, the individual sediment and floodplain alternatives have been combined into nine comprehensive alternatives for all contaminated material (floodplain soil/sediment). The Combination Alternatives (or Combinations), listed below, were designed to span the full range of remedial actions in terms of removal volumes, methods, and affected areas:
Combination Alternative 1: SED1/FP 1 (the “no action” alternative)
Combination Alternative 2: SED 2/FP 1
Combination Alternative 3: SED 3/FP 3
Combination Alternative 4: SED 5/FP 4
Combination Alternative 5: SED 6/FP 4
Combination Alternative 6: SED 8/FP 7
Combination Alternative 7: SED 9/FP 8
Combination Alternative 8: SED 10/FP 9
Combination Alternative 9: SED 9 MOD/FP 4 MOD (EPA’s Proposed Remedial Action)
A matrix showing each combination alternative broken down by river reach and floodplain is shown in Table 1.“

Table 2 outlines estimated volumes, timeframe, and acres addressed for each of the combinations.

Just to give you an idea of the gap between the volumes of contaminated sediments and floodplain soils to be remediated and/or treated or disposed of here are descriptions of Combination Alternative 1, the alternative requiring the least remediation, and Combination Alternative 6, the alternative requiring the most remediation:

“Combination Alternative 1 is a combination of Sediment Alternative SED 1 and Floodplain Alternative FP 1. This alternative involves no action in either the river or the floodplain. Combination Alternative 1 does not involve the excavation or capping of any contaminated soil and sediment. Since there is no active remedy construction, this alternative does not take any time to implement. Contamination remains in the River above safe levels for human health and ecological receptors and is expected to remain that way for over 250 years and there are no measures to prevent exposure. There is no cost associated with this alternative. (Emphasis added.)

“Combination Alternative 6 is a combination of Sediment Alternative SED 8 and Floodplain Alternative FP 7. This alternative involves removal of river bed sediment in Reaches 5A, 5B, and 5C, Backwaters, Woods Pond, the Reach 7 impoundments, and Rising Pond to meet a PCB concentration of 1 mg/kg followed by backfill; bank soil removal and stabilization of Reach 5A and 5B river banks; and, MNR in all other River reaches (Reach 7 channel and Reaches 9 through 16). For the floodplain, Combination Alternative 6 involves the removal of one foot of contaminated soil with subsequent backfilling to meet a human-health based cleanup target based on a 10-6 cancer risk or non-cancer HI = 1 (whichever is lower). This alternative also includes floodplain excavation to achieve the more stringent ecological risk-based numerical values. 

“Combination Alternative 6 involves the excavation of approximately 2,252,000 cubic yards of sediment, 35,000 cubic yards of bank soil and 121,000 cubic yards of floodplain soil. This alternative involves the excavation of approximately 387 acres of floodplain area and also includes the backfill of 351 acres of river bed after excavation. Institutional Controls, long-term operation, monitoring, and maintenance are also components of this alternative. This alternative is estimated to take 52 years to implement. The cost for this alternative is estimated at $917 million, excluding costs for transportation or disposal of excavated soil or sediment. (Emphasis added.)

“Treatment/Disposition Alternatives
Five alternatives were developed for treatment and/or disposition (TD) of removed sediment, riverbank soil, and floodplain soil from the Rest of River. These alternatives are as follows: 
TD 1: Off-Site Disposal in Existing Licensed Landfill(s) (EPA’s Preferred Alternative) 
TD 2: Local Disposal in Confined Disposal Facility (CDF) 
TD 3: Local Disposal in an On-Site Upland Disposal Facility 
TD 4: Chemical Extraction 
TD 5: Thermal Desorption

“Alternative TD 1, disposal in an existing off-site licensed landfill or landfills, would involve the transportation of removed sediment and floodplain soil to commercial solid waste and/or TSCA-licensed landfill(s) for disposal. In the CMS, GE evaluated transport of contaminated material by trucks. In its comments, EPA required that GE provide an evaluation of rail transport in the Revised CMS. GE provided a qualitative evaluation and concluded that rail transport would be technically feasible; therefore transportation could be conducted either by trucks or by rail. However GE did not provide cost information. EPA further evaluated the feasibility of rail and developed a cost estimate. This modification is also referred to in this document as TD 1 RR. The estimated cost for this alternative ranges from $55 to $832 million for disposal via truck and $52 to $787 million for disposal via rail, depending on which Combination Alternative it is paired with. For the preferred sediment/floodplain alternative, the estimated cost of disposal via truck is $308 million and via rail is $287 million. “

And then there is HRI’s preferred strategy: “Alternative TD 5, thermal desorption of PCBs from removed sediment/soil, would involve treatment of the removed sediments and soils by a technology known as thermal desorption. Thermal desorption removes contaminants by raising the temperature of the contaminated material to transfer the contaminants from the sediment or soil to a gas stream. The gas stream is then treated to remove particulates and the organic contaminants. The material that remains is then sent to an appropriate treatment/disposal facility. Treated sediments or soils may then be disposed of in an appropriate disposal facility or potentially reused, depending on its chemical concentrations and physical characteristics. The estimated cost for this alternative ranges from $103 million to $1.53 billion, depending on which Combination Alternative it is paired with and how much material is reused; with EPA’s preferred Combination Alternative, this alternative is estimated to cost between $515 and $540 million. (Emphasis added.)

EPA explained how it made these decisions: “Before making its recommendation, EPA coordinated with the Commonwealth of Massachusetts and the State of Connecticut regarding potential cleanup approaches. EPA worked closely with the States on the development of the Performance Standards, corrective measures and identification of ARARs prior to the issuance of this plan to the public … EPA used nine criteria that were established in the Permit to compare alternatives, and propose and select a final cleanup plan. Of the nine criteria, Overall Protection of Human Health and the Environment, Compliance with Applicable or Relevant and Appropriate Federal and State Requirements (known as “ARARs”), and Control of Sources of Releases are the three General Standards for Corrective Measures. In addition, EPA considered six other Selection Decision Factors; those factors are as follows: Long-Term Reliability and Effectiveness, Attainment of Interim Media Protection Goals; Reduction of Toxicity, Mobility or Volume; Short- Term Effectiveness; Implementability; and Cost … 

It was pretty obvious that the EPA was predisposed against Thermal Desorption and committed instead to disposing of the contaminated sediments and soils by transporting them out-of-state to an approved landfill.

That bias was apparent as EPA weighed the various alternatives: Overall Protection of Human Health and the Environment:

“Combinations 4, 5, 6, 7, and 9 would restore water quality consistent with this criterion in significant segments of the river in Connecticut, based on estimates of meeting this criterion in the future in 50% or more of the Connecticut impoundments. Combination Alternatives 6, 7, and 9 would provide the highest level of protection to human health and the environment because the largest volume of sediment and floodplain soil would be addressed (by a combination of removal and capping in place, or amended with activated carbon to reduce the bioavailability of PCBs) and downstream transport would be reduced to the greatest extent …

“By employing a more targeted remediation approach, Combination 9 provides the best balance between addressing human health risks and ecological risks and negative impacts of remedial work on the river’s ecosystem, including its array of state-listed species habitats. Those Combination Alternatives that have minimal or no impact to state-listed species (Combinations 1, 2, or 8) have much less cleanup than Combination 9 and thus provide reduced overall protection for risks to human health and the environment.” 

And here is EPA’s discussion of Long-Term Reliability and Effectiveness:

“Of these cleanup alternatives, those Combination Alternatives that remove the most contaminated soil and sediment (Combination Alternative 6, followed by Combination Alternatives 7 and 9) provide the best long-term reliability and effectiveness because the magnitude of the residual risk that remains is much lower than those alternatives that leave significantly more contaminated material in place … However, Combination Alternatives that fundamentally impact the dynamic, meandering character of the river or require extensive excavation in habitats supporting state-listed species (such as Combinations 6 and 7) may result in reduced longterm effectiveness because of potential long-term adverse effect on the environment. As a result, Combination 9, which includes more excavation than most alternatives, but also provides the most measures and procedures to preserve and protect the river’s sensitive ecosystem, including its array of state-listed species habitats, provides the best balance in terms of reducing residual risk and minimizing long-term ecological impacts … Combinations 6, 7, and 9 are also more reliable in the long-term based on their removal of a large mass of PCBs from behind Woods Pond dam. (Emphasis added.)

There’s Attainment of IMPGs: “As part of the Corrective Measures Study process, human health Interim Media Protection Goals (IMPGs) were developed to address cancer risk and non-cancer risk for the following three major routes of exposure:
• Direct contact with sediment and floodplain soil.
• Consumption of fish and waterfowl.
• Consumption of agricultural products …Combinations 6 and 7 are designed to meet the lower-bound (more stringent) ecological IMPGs. While each alternative represents a different balance between risk reduction and habitat protection, EPA has determined that Combination 9 provides the best balance between meeting the ecological IMPGs while minimizing and mitigating the impact of the remedy on the river’s ecosystem and its array of state-listed species and habitats.” (Emphasis added.)

“Reduction of Toxicity: None of the Combination Alternatives with the exception of Combination 9 includes any treatment processes that would reduce the toxicity of PCBs in the sediment or soil. Combination 9 requires the addition of an amendment such as activated carbon in certain components of the remedy, including vernal pools, Reach 5B sediment, and Backwaters. The addition of such an amendment is expected to reduce toxicity. Since none of the other Combinations provide for this treatment, Combination 9 surpasses all other alternatives in the amount of materials treated and the degree of reductions in toxicity due to treatment.”

Here’s EPA’s discussion of Long Term Reliability and Effectiveness: “Of these cleanup alternatives, those Combination Alternatives that remove the most contaminated soil and sediment (Combination Alternative 6, followed by Combination Alternatives 7 and 9) provide the best long-term reliability and effectiveness because the magnitude of the residual risk that remains is much lower than those alternatives that leave significantly more contaminated material in place …

“However, Combination Alternatives that fundamentally impact the dynamic, meandering character of the river or require extensive excavation in habitats supporting state-listed species (such as Combinations 6 and 7) may result in reduced longterm effectiveness because of potential long-term adverse effect on the environment. As a result, Combination 9, which includes more excavation than most alternatives, but also provides the most measures and procedures to preserve and protect the river’s sensitive ecosystem, including its array of state-listed species habitats, provides the best balance in terms of reducing residual risk and minimizing long-term ecological impacts. All active alternatives would require restoration and compliance with relevant ARARs to mitigate the impacts of the remediation. (Emphasis added.)

For Reduction of Toxicity, EPA claimed: “None of the Combination Alternatives with the exception of Combination 9 includes any treatment processes that would reduce the toxicity of PCBs in the sediment or soil. Combination 9 requires the addition of an amendment such as activated carbon in certain components of the remedy, including vernal pools, Reach 5B sediment, and Backwaters. The addition of such an amendment is expected to reduce toxicity. Since none of the other Combinations provide for this treatment, Combination 9 surpasses all other alternatives in the amount of materials treated and the degree of reductions in toxicity due to treatment.” (Emphasis added.)

As for EPA’s Comparative Analysis of Treatment/Disposal Alternatives: 

Overall Protection of Human Health and the Environment: TD 1, 3 and 5 would provide high levels of protection to human health and the environment because all excavated contaminated material would either be removed from the site (TD 1), contained in an upland disposal facility (TD 3), or treated to levels safe for off-site disposal or potential reuse (TD5). TD 2 could also provide human health protection as long as monitoring, maintenance and/or Institutional Controls are effective in the long term, in order to avoid negative impacts to the river system. Alternative TD 4 (chemical extraction) may not be able to effectively treat PCB contamination from the site, calling into question the protectiveness of this alternative. 

Reduction of Volume: TD 1, TD 2, and TD 3 would not reduce the volume of PCB-contaminated material, although, TD 1 would reduce the volume of material that remains at the Site. For TD 4, treatment of sediment/soil would reduce the volume of PCBs present in those materials by transferring some of the PCBs to an aqueous waste stream for subsequent treatment. PCB-contaminated sludge would be generated from the wastewater treatment system and would be sent to a permitted off-site facility for disposal. For TD 5, treatment of sediment/soil in the thermal desorption system would reduce the volume of PCBs present in those materials, with the liquid condensate transported to an off-site facility for destruction.

Not surprising GE’s analysis of the alternatives for remediating Housatonic River sediments and floodplain soils, and their analysis of what treatment and/or disposal alternatives for the PCB contaminated sediments and soils favored the least expensive options. GE also put forward the terribly ironic notion that any significant clean up threatened the River itself. The popular translation was Destroy The River To Clean It.

Here  are some selections from GE’s COMMENTS OF THE GENERAL ELECTRIC COMPANY ON U.S. ENVIRONMENTAL PROTECTION AGENCY NEW ENGLAND REGION’S DRAFT RCRA PERMIT MODIFICATION AND STATEMENT OF BASIS FOR PROPOSED REMEDIAL ACTION FOR THE HOUSATONIC RIVER – REST OF RIVER:

“GE’s evaluations necessary to select a Rest of River remedial action, as specified in the Consent Decree and the Permit, have now been completed. They include a massive Corrective Measures Study (CMS), and an even more comprehensive Revised Corrective Measures Study demanded by the Commonwealth of Massachusetts and others who concluded that the CMS did not sufficiently account for the inevitable negative impacts of further attempts to remove PCBs from the Housatonic River and its floodplain. The EPA New England Region (the “EPA Region” or the “Region”) has proposed a Rest of River remedial action in a draft Permit modification; and that draft Permit modification, and the Region’s accompanying Statement of Basis and Comparative Analysis of Remedial Alternatives, contain (and purport to explain) the Region’s proposed remedial action for the Rest of River.

“However, the Region’s proposal ignores the very evaluations that the Region itself demanded, and the Region has not conducted evaluations of its own proposal like those it demanded for every other remedial alternative in the CMS and the Revised Corrective Measures Study. The Region’s proposed remedy is almost three times larger than the one proposed by the Commonwealth of Massachusetts in response to the Revised Corrective Measures Study, and larger than all but two of the alternatives evaluated in the Revised Corrective Measures Study. The Region’s proposal would involve more removal, from more areas, with more negative impacts, and more cost. So it shouldn’t be surprising that there is no consensus about the Rest of River remedy proposed by the Region, like the consensus that was reached with respect to all of the other areas addressed by the Consent Decree. Beginning when the Region first shared with the public and GE its intentions for the Rest of River in the summer of 2012, GE stretched as far as it could to try to achieve a consensus on a common-sense solution to the PCBs in the Rest of River that was consistent with the conclusions of the evaluations that the Region had required. GE was prepared to undertake one of the largest river cleanups in history, including elements important to stakeholders that can’t be required under the Consent Decree or the Permit. 

“GE agrees that the Rest of River remedy must be fully protective of human health and the environment. However, as anyone who reads the Revised Corrective Measures Study can tell, the consideration of any effort to further reduce the concentrations of PCBs in the Rest of River requires a delicate balancing of the positive and negative impacts of such an effort. The Consent Decree and the Permit specify such a balancing by requiring EPA to select a Rest of River remedy on the basis of criteria that reflect particular kinds of positive impacts – like “overall protection of human health and the environment” and “control of sources of releases” – and negative impacts – like short-term and long-term negative impacts on the community and the ecosystem, as well as cost. The Consent Decree and the Permit do not allow EPA to propose a remedy that will do more overall harm than good, or to ask GE to spend unlimited amounts of money and effort to achieve speculative or minimal incremental benefits.

“PCBs are undeniably present in the Rest of River, but PCBs have undeniably been present there for over 70 years, and the River, along with its unique forested banks and floodplains and associated wetlands, including dozens of irreplaceable vernal pools, all continue to support a rich variety of plant and animal life. Indeed, the Rest of River is home to many state-listed rare species that have not been able to maintain their footholds elsewhere.

“At the same time, the Rest of River is a vulnerable and even a fragile place. Nearly any effort to remediate PCBs will disrupt it to some extent, and any aggressive cleanup effort will disrupt it beyond recognition and repair – clear cutting its forests, removing its delicate vernal pools, dredging the riverbed and wetlands, eliminating rare steep riverbanks carved by time and nature – destroying the habitats provided by these sensitive areas and destroying or displacing their many animal and plant inhabitants.” (Emphasis added.)

This is how the Berkshire Eagle put it: “GE strongly decries EPA’s ‘Rest of River’ plan to clean Housatonic” Clarence Fanto, Wednesday, October 29, 2014 

“General Electric has dumped a bucket of ice water on the U.S. Environmental Protection Agency’s proposal for a $619 million, 13-year cleanup of PCBs from the Housatonic River in southeast Pittsfield and five Berkshire County communities downstream.

“The company’s 128-page document with a sheaf of supplementary material was filed at midday on Monday, the last day the EPA had set for official comment on its plan.

“Using strong language, GE argued that the government’s Rest of River remedy “is far larger and more destructive than remedies that have already been rejected by the Commonwealth of Massachusetts as doing more harm than good.”

“The company asserted that the EPA proposal far exceeded the anticipated scope of the remedy outlined in the legally binding Consent Decree and cleanup permit negotiated by stakeholders, including the state and the city of Pittsfield, that led to the first phase of the Housatonic River cleanup.

https://www.berkshireeagle.com/stories/ge-strongly-decries-epas-rest-of-river-plan-to-clean-housatonic,351742

Consultant Peter DeFur made comments on behalf of HRI:
“The EPA released the two documents that cover the cleanup of the Housatonic River,the Draft RCRA permit (Permit) and the Statement of Basis (Basis) for the permit modification, in June of 2014 for a public comment period … 
“Monitored natural recovery (MNR) or some derivation thereof is first raised in the summary of the Basis. The Basis provides no documentation for using MNR, does not give an evaluation of the approach and gives no examples of where MNR has been used effectively with PCBs or other chlorinated organic contaminants with physical and chemical characteristics similar to PCBs and in rivers that have characteristics in common with the Housatonic.
“A number of issues arise in the Basis and Permit, including the absence of information and data. The major problem areas are listed below, with further elaboration on each point later in these comments. Major Issues:

• • • The Permit and Basis leave high levels of PCBs in areas of the river and watershed where wildlife will remain contaminated for the foreseeable future. As such, the Permit and Basis give no logic or explanation for this strategy that is counter to the latest (and increasing) evidence that PCBs are more toxic at lower levels than previously considered.
    • There is no definition with supporting materials for the “Areas of Critical Concern,” or Core Habitats. 
    • The Basis and Permit do not provide any documentation of the rationale or technical analysis of habitats to reach a conclusion that these places are “Areas A number of issues arise in the Basis and Permit, including the absence of information and data. The major problem areas are listed below, with further elaboration on each point later in these comments.Major Issues:
    • The Permit and Basis leave high levels of PCBs in areas of the river and watershed where wildlife will remain contaminated for the foreseeable future. As such, the Permit and Basis give no logic or explanation for this strategy that is counter to the latest (and increasing) evidence that PCBs are more toxic at lower levels than previously considered.
    • There is no definition with supporting materials for the “Areas of Critical Concern,” or Core Habitats. 
    • The Basis and Permit do not provide any documentation of the rationale or technical analysis of habitats to reach a conclusion that these places are “Areas of Critical Concern.” Such a major departure from the practice of activeremediation should demand thorough documentation and there is none.
    • The Plan sets a performance Standard for PCBs in Biota of 1.5 mg/kg (ppm) in fish tissues in 15 years and 0.064 mg/kg for the “long term” in MA. These values are too high and do not protect against cancer or non-cancer effects, according to EPA guidance. Fish tissue PCB levels of 0.012 mg/kg or less are necessary to reduce cancer risk to acceptable for one fish meal a week.
    • No place in the document discusses the efficacy of Monitored Natural Recovery(MNR), nor is any evidence presented to support the use of MNR; there areabundant data that demonstrate that MNR does not work for persistent bioaccumulative chlorinated organic chemicals, of which PCBs are but one present example.
    • The Plan does not consider the EPA data that demonstrate the effectiveness of removing PCBs to reduce fish tissue PCB levels. EPA has supported the effectiveness of removal through the Hudson River remediation of PCBs.
    • The Plan will use Woods Pond as an intentional catch basin for PCB contaminated sediments that are carried downriver as a result of erosion and scour. The Plan does not offer precedent or explanation for such an approach.
    • Reaches 5 through 16 include PCB-contaminated soil greater than 1 ppm in adjacent floodplain. However, the PCB floodplain removal level changes throughout the Reaches; sometimes 1 ppm, 5 ppm, or 50 ppm, and without justification or explanation.New remediation methods with up-to-date equipment can provide more efficient remediation with a lesser impact and footprint than presented in the Permit and Basis. The options for remediation are much broader than what’s considered.
    • Stream restoration is a fully developed field of practice and research. Current procedures and standards of practice offer sophisticated approaches to restoring waterways such as the Housatonic, points not acknowledged in the Plan.
    • The substantial literature on the harmful effects of PCBs on wildlife and humans, summarized here, is justification for a more aggressive remediation based on removal and treatment rather than capping and MNR (literature citations attached as an Appendix A);
    • Housatonic River (and floodplain) PCBs will contaminate Long Island Sound and contribute to the global PCB loads for the foreseeable future.

“These major issues are covered in the following sections:
1) Leaving PCBs in “Core Habitats” will cause continued harm to human health and the environment.
2) Fish tissue PCB Levels must be lower.
3) PCB toxicity
4) Advances in PCB removal and remediation rechnology
5) Stream restoration is effective.
6) Adaptive management

“1) Leaving PCBs in “Core Habitats” will cause continued harm to human health and the environmentThe Plan will leave substantial quantities of PCBs in the Housatonic River, especially in habitats where sensitive species are most likely to be exposed and suffer the harmful effects of these chemicals. EPA and MassDEP propose to leave PCBs in sediments and soil (including riverbanks) in critical habitat areas for various animals and plants. Some of the animals (i.e. mink and freshwater mussels) are so sensitive to PCBs that their populations are already greatly reduced or absent from the areas. Despite the welldocumented high toxicity of PCBs, the Plan would leave PCBs in place. An updated literature review of PCBs indicates the wide range of effects already known to be caused by PCBs has expanded even more in recent years. The PCBs left in the Housatonic River and nearby watershed can be reasonably expected to exert toxic effects on the animals for the foreseeable future, causing reproductive impairments, developmental abnormalities, behavioral abnormalities and other effects.
“Humans will continue to be exposed to the Housatonic River PCBs via several exposure routes. First, fish will remain contaminated for decades to come. Knowledge of fish consumption advisories is not unanimous among those who fish the Housatonic. Furthermore, some subsistence fishers rely on fish as a major source of protein. Another notable exposure pathway is airborne distribution via volatilization and condensation. Research into this phenomenon in the regions of New Bedford Harbor and the Upper Hudson River indicates that community members in the vicinity of PCB Superfund sites have elevated levels of PCBs in their bodies. These PCB exposures are associated with impairments of the central nervous system, and are correlated with increased risks of ADHD in children, and impaired reasoning in elderly citizens near the Upper Hudson.
“The Plan provides no documentation, no references and no serious explanation for most of the important and critical approaches, particularly the approaches that diverge from EPA practice and are inconsistent with the evaluation of the National Remedy Review Board (NRRB). The approach of leaving substantial quantities of PCBs in the “core areas” of Reach 5B is substantiated by references, documentation, raw data or acknowledgement of the literature. Major decisions that depart from Agency practice, policy and the recommendations of the NRRB need to have the rationale carefully explained, and the decision substantiated with a record of data and analysis, none of which is present in this case.”

This pretty much sets out the case HRI made. GE’s proposed clean up failed in substantive ways to protect human health and the environment and left far too many PCBs in place. You can download and read the complete document here:

HRICOMMENTSFINALRESTRIVER 2014

This is the battle HRI engaged in for the rest of the decade. Trying to pressure the EPA to insist on the most comprehensive, most protective clean up.

But the Destroy The River To Clean It mantra quickly spread. GE made a massive effort to recruit Berkshire County sportsmen whose love for the river got twisted into a willingness to live with a completely contaminated river system, fish with tumors and ducks with the highest levels of PCBs in the country.

The Commonwealth of Massachusetts was one of the earliest adopters of GE’s position, prompting many months long negotiations with EPA over the extent of the clean up. Here’s a selection from Massachusetts’ comments on GE’s CMS:

Commenting on the CMS, the Commonwealth states: “After extensive review of the remedial alternatives presented to date, the Commonwealth has concluded that none of the current combinations of alternatives achieve the remediation goals withoutcausing irreparable harm to this unique, diverse and vital ecosystem that has been designated by the Commonwealth as an Area of Critical Concern (ACEC) … Our proposed approach is to remove PCBs when needed to protect human health, or when compelling goals may be achieved without causing ecological harm. This means that our approach leans away from performing intrusive work in the name of meeting purported ecological goals; because in virtually all instances the actual and inevitable damage to this existing, unique ecological resource will far exceed the theoretical benefit of lower PCB concentrations.” (Commonwealth of Massachusetts CMS Comments, January 31, 2011, Page 1, Emphasis added).

It was all so terribly ironic, even maddening considering the obvious and demonstrable success of the two mile clean up. Even the most sensitive vernal pools were being successfully remediated and restored, a success DEP captured, even celebrated in two visits to the site. Here are some DEP photographs from 2008 and 2011:

DEP took more pictures in June 2011:

In 2012 and 2013 the EPA took a series of photos of the Mile and ½ section. Here’s a picture of the River south of Lyman Street taken in June, 2012:

And another photo a year later:

“But beyond photographic and visual evidence, the U.S. Army Corps of Engineers in its 2007 “Post-Remediation Sediment Sampling Report 1.5-Mile Reach Removal Action”conclusively demonstrated that EPA not only successfully reduced PCB levels in the 1.5 Mile Reach from 1,534 parts per million to less than 2 parts per million but successfully restored the sensitive areas of the River: “The sediments collected in remediated and restored areas of the 1.5 Mile Reach have total PCB concentrations ranging from nondetect … to 1.9 ppm with an average total PCB concentration of 0.17 ppm.” (Page 4)(http://citeseerx.ist.psu.edu/viewdoc/download;jsessionid=5465D2FC6A792B7C735E165B35AC29A4?doi=10.1.1.642.6250&rep=rep1&type=pdf)

“The Army Corps also inventoried the health of benthic macroinvertebrates and aquatic organisms, typically insects of the river bottom. Having documented the health of benthic macroinvertebrates in 2000 before EPA began the cleanup, they had a clear before and after comparison: “A substantial decrease in tissue PCB concentrations, a reduction of more than 99 percent between the 2000 and 2007 collections, is evident and indicates the effects of the remediation, which was also reflected in the sediment PCB concentrations.” (Post-Remediation Aquatic Community Assessment 1 1⁄2 Mile Removal Reach, Page 6, Emphasis added).

“Fish diversity may increase some in the future as woody debris and aquatic vegetation become more prevalent. The abundance and diversity of fish species identified appears to indicate good water and habitat quality.” (Page 9, Emphasis added).

“A dispassionate examination of GE’s and EPA’s record remediating and restoring the 2 Miles of the River clearly supports the conclusion that a more thorough option like SED 8/FP 7 could successfully be accomplished, best protecting human health and the environment by remediating, then effectively restoring the Rest of River.”

In October 2016 after rounds of negotiation with the Commonwealth of Massachusetts and GE, EPA issued its FINAL PERMIT MODIFICATION TO THE REISSUED RCRA PERMIT CERCLA REMEDIAL ACTION AND OPERATION & MAINTENANCE FINAL PERMIT MODIFICATION TO THE REISSUED RCRA PERMIT AND SELECTION OF CERCLA REMEDIAL ACTION AND OPERATION & MAINTENANCE FOR REST OF RIVER.

You can download and read EPA’s Fact Sheet here:

5939212016FINALRCRAPERMIT 593981FACTSHEET2016FINAL

You can download and read the entire document here:

5939212016FINALRCRAPERMIT

Here are some of its provisions:

• • 2. “River Sediment and Banks. Reach 5A (1) Performance Standards (a) Throughout Reach 5A, river bed sediment shall be removed and an “Engineered Cap” (references in this Permit shall mean an Engineered Cap as described below in Section II.B.2.i.) shall be placed over the entire riverbed.

“(b) Contaminated soil from eroding riverbanks in Reach 5A shall be removed.

“(c) A bank shall be considered contaminated if it contains ≥ 5 mg/kg total PCBs … Corrective Measures To achieve and maintain these Performance Standards, Permittee shall remove sediment, install an Engineered Cap in the entire riverbed, remove riverbank soils, reconstruct the riverbanks, and perform all other related activities …

“The location of contaminated eroding riverbanks shall be determined using a BANCS model7 calibrated for the Housatonic River and the collection of additional riverbank soil PCB data. A bank shall be considered contaminated if it contains ≥ 5 mg/kg total PCBs measured in the surficial 0 to 12 inches as the average of three 12-inch cores taken at the toe, midpoint, and top of the bank at a maximum spacing of every 25 feet of linear bank …

“Reach 5B (1) Performance Standards

“(a) The river bed sediment associated with each discrete sample with ≥ 50 mg/kg total PCBs shall be removed and backfilled. The backfill shall consist of material with characteristics similar to existing sediment and placed to original grade.

“(b) Subsequent to excavation and backfill, Enhanced Monitored Natural Recovery (Enhanced MNR or EMNR) shall be implemented throughout Reach 5B. Permittee shall place an amendment such as activated carbon and/or other comparable amendments proposed by Permittee and approved by EPA throughout Reach 5B to reduce the bioavailability of the remaining PCBs in the sediment bed. (c) The riverbank soil with ≥ 50 mg/kg total PCBs shall be removed, and disturbed banks shall be reconstructed using bioengineering methods to minimize erosion and reduce downstream transport of the residual PCBs in bank soil …

“(2) Corrective Measures

“To achieve and maintain these Performance Standards, Permittee shall remove sediment, install backfill in the riverbed, implement EMNR, including placement of an amendment such as activated carbon and/or other comparable amendments, remove riverbank soils, reconstruct the riverbanks, and perform all other related activities.

“Reach 5C (1) Performance Standards

• • 1. a) Throughout Reach 5C, river bed sediment shall be removed and an Engineered Cap shall be placed over the entire riverbed.

“(2) Corrective Measures

“To achieve and maintain these Performance Standards, Permittee shall remove sediment and install an Engineered Cap in the entire riverbed and perform all other related activities.

“(a) River bed sediment shall be removed, generally using engineering methods employed from within the river channel with either dredging or wet excavation techniques to be approved by EPA.

“Sediment removal and subsequent capping shall result in a final grade generally consistent with the original grade or with modifications, as approved by EPA, considering the principles of Natural Channel Design.

“Backwaters adjacent to Reaches 5, 6, and 7

“(1) Performance Standards (a) For contaminated sediment in the portions of Backwaters located outside of Core Area 1 Priority Habitat (as generally shown in Attachment B):i. For surface sediment (0- to 12-inch depth): remove sufficient sediment, including any areas ≥ 50 mg/kg total PCBs, and replace with a contiguous Engineered Cap to achieve a spatially-weighted average concentration of 1 mg/kg total PCBs in each averaging area. When calculating post-remediation surficial spatially-weighted average concentrations, a PCB concentration equal to 1% of the existing average surficial concentration shall be used as the PCB concentration in capped areas.

“Woods Pond (Reach 6)

“(1) Performance Standards (a) Sediment shall be removed throughout the pond and an Engineered Cap shall be placed over residual PCBs to result in a post-capping minimum water depth of 6 feet measured from the crest of the dam, except in near-shore areas where the slope from the shore to the 6-foot water depth shall be as steep as possible, while also being stable and not subject to erosion or sloughing.In areas deeper than 6 feet prior to remediation, sufficient sediment shall be removed to allow for the placement of an Engineered Cap so that the final grade is equal to or deeper than the original grade.

“Rising Pond (Reach 8)

“(1) Performance Standards (a) For surface sediment (0- to 12-inch depth): remove sufficient sediment, including any areas with ≥ 50 mg/kg total PCBs and replace with a contiguous Engineered Cap to achieve a spatially-weighted average concentration of 1 mg/kg total PCBs in surface sediment in each averaging area. When calculating post-remediation surficial spatiallyweighted average concentrations, a total PCB concentration equal to 1% of the existing average surficial concentration shall be used as the PCB concentration in capped areas.

” (b) For subsurface sediment: for areas outside the footprint of the Engineered Cap necessary to meet the requirements in Section II.B.2.g.(1)(a) above, remove sufficient sediment and replace with contiguous Engineered Cap(s) to achieve a spatially-weighted average concentration of 1 mg/kg total PCBs in subsurface sediment in each averaging area and depth interval. For areas beneath an Engineered Cap, a total PCB concentration equal to 1% of the existing average surficial concentration shall be used as the PCB concentration in spatial[1]weighting calculations.

“(c) Engineered Capping shall result in a final grade generally consistent with original grade.

“(d) In lieu of the provisions in Sections II.B.2.g.(1)(a) through II.B.2.g.(1)(a)(c) above, the Permittee may propose to excavate sediments, including any areas with ≥ 50 mg/kg PCBs, to achieve a spatially weighted average concentration of 1 mg/kg total PCBs in surface sediment (0- to 12-inch depth) and subsurface sediment in each averaging area and depth interval. Backfilling may be required to ensure channel stability; however, the placement of backfill shall not be considered in the spatially weighted averaging calculations …

“Flowing Subreaches in Reach 7 and Throughout Reaches 9 Through 16, Including Impoundments

“(1) Performance Standard

“Monitored Natural Recovery (MNR) shall be implemented in these Reaches.

“(2) Corrective Measure

“To achieve and maintain this Performance Standard, Permittee shall conduct monitoring of PCB concentrations in affected media (including surface water, sediment, and biota) in these Reaches to see if recovery is occurring at the expected rate, maintain institutional controls, and perform all other related activities.

“Engineered Caps

“(1) Performance Standards

“(a) All Engineered Caps constructed shall include the following layers or functions:

” A Mixing Layer to prevent contamination of the chemical isolation layer due to mixing with underlying contaminated sediment during cap placement, taking into account geotechnical considerations, placement techniques, and other factors as appropriate.

• • 1. Chemical Isolation Layer sufficient to minimize (reduce by 99%) the flux of PCB concentrations through the isolation layer.

“iii. Erosion Protection Layer to prevent erosion in accordance with federal and state requirements and consistent with pertinent EPA or U.S. Army Corps of Engineers (USACE) guidance.

“Geotechnical Filter Layer, as needed based on the design evaluation, to prevent mixing between other layers.

“Bioturbation Layer to prevent bioturbation from impacting underlying layers.

” Habitat Layer to provide functions and values equivalent to the pre-existing surficial sediment substrate …

“The Permittee shall design and construct all Engineered Caps to physically isolate contaminated sediments from potential ecological and human receptors, and minimize the transport of PCBs from the sediment beneath the caps to the bioavailable surface layer and the water column, consistent with the principles presented in pertinent EPA or USACE guidance such as EPA’s Contaminated Sediment Remediation Guidance for Hazardous Waste Sites (EPA, 2005) and Guidance for In-Situ Subaqueous Capping of Contaminated Sediments (Palermo et al., 1998) and in accordance with federal and state requirements….

“5. Off-Site Disposal of Contaminated Sediment and Soil.

“Performance Standard

“The Permittee shall dispose of all contaminated sediment and soil, as well as other waste material, off-site at existing licensed facilities that are approved to receive such waste material and are in compliance with EPA’s off-site rule (40 C.F.R. 300.440.) …

“F. Adaptive Management

“An adaptive management approach shall be implemented by the Permittee in the  conduct of any of the Corrective Measures, whether specifically referenced in the requirements for those Corrective Measures or not, to adapt and optimize project activities to account for “lessons learned,” new information, changing conditions, evaluations of the use of innovative technologies, results from pilot studies, if any, and additional opportunities that may present themselves over the duration of the project, including during periodic reviews. The Permittee shall modify the implementation of the Corrective Measures, with EPA approval, after a reasonable opportunity for review and comment by the States, through this process to minimize any adverse impacts of the response action, expedite the response, improve the Corrective Measures, and/or to ensure compliance with, or continued progress towards, achieving Performance Standards. To implement an adaptive management approach effectively, Permittee shall submit deliverables identified in Section II.H. (Rest of River SOW) in phases, where appropriate, and identify how any lessons learned and any new information will be incorporated
into subsequent deliverables and/or other methods to optimize project activities. The Permittee shall perform the Corrective Measures in accordance with any modifications that are so identified by the Permittee (with EPA’s approval), or that are identified and required by EPA, including, but not limited to, applying an adaptive management approach to the Rest of River SOW, or any other plans, specifications, schedules, or other documents. Any requirements identified by EPA pursuant to this provision cannot be inconsistent with the Consent Decree
(including, but not limited to, Paragraphs 39, 162 and 163) …

“11. Quality of Life Compliance Plan

:a. Noise, air, odor, light standards;

b. Continued recreational activities;

c. Road use, including restrictions on transport of waste material through residential areas and methods to minimize and/or mitigate transportation related impacts to neighborhoods, infrastructure and the general public;

d. Coordination with affected residents or landowners at or near areas impacted by remediation; and,

e. Community Health and Safety

“(1) The Permittee shall maintain a website (similar to http://www.hudsondredging.com/) to provide community access to information such as data, technical reports, work plans, and project fact sheets, as well as updates on current and future project activities; and

“(2) The Permittee shall establish and maintain a system to identify and address community complaints and concerns during construction activities.

“ATTACHMENT D

“TSCA 40 C.F.R. SECTION 761.61(C) DETERMINATION

“PCB-contaminated sediments and soils in the Rest of River likely meet the definition of PCB
remediation waste as defined under 40 C.F.R. Section 761.3 and thus are regulated for cleanup and disposal under 40 C.F.R. Part 761. EPA’s Rest of River administrative record available for public review includes extensive information on the nature of the contamination, location and extent of the contamination, the procedures used relative to sampling, and Human Health and Ecological Risk Assessments. The Rest of River cleanup plan is specified in the Permit. In accordance with the requirements under the Toxic Substances Control Act (TSCA) and 40 C.F.R. Section 761.61(c), and as supported by the Administrative Record for this matter, EPA has made a finding that the manner of sampling, storage, cleanup, and disposal of PCB-contaminated sediment and soil as set out in this Permit, including attainment of the Performance Standards and associated Corrective Measures to meet the Performance Standards, will not result in an unreasonable risk of injury to human health or the environment as long as the following conditions are met:  All contaminated sediment and Floodplain soil that is removed will be disposed of offsite at an existing TSCA-approved disposal facility or RCRA hazardous waste landfill or a landfill permitted by the receiving state to accept PCB remediation wastes, depending on the contaminant levels and waste classifications. 

“Several components of the Permit require construction of an Engineered Cap following
sediment removal. Such Engineered Caps will be constructed in accordance with the
Engineered Cap Performance Standards and design protocols identified in the Permit.

“Protocols, developed in accordance with TSCA, will be developed and maintained for the
decontamination of all equipment used when handling TSCA-regulated material to ensure
proper decontamination of equipment and to avoid mixing of TSCA-regulated material with non-TSCA material. 

“The use of activated carbon or another amendment as part of Rest of River remediation
will be implemented in accordance with the Permit to reduce the bioavailability of PCBs
following remediation.

“Institutional Controls, Operation and Maintenance, and Periodic Reviews will be carried
out as a component of the cleanup, both in the areas of sediment and Floodplain removal,
and in areas subject to Monitored Natural Recovery.  Air monitoring and dust suppression measures for PCBs will be maintained until excavation and transport of PCB-contaminated soil and sediment, and capping of PCB contaminated soil and sediment is complete.”

Both HRI and GE had problems with the EPA decision. HRI believed the clean up wasn’t comprehensive enough and failed to call for treatment, while GE believed it was unreasonable to expect such a large remediation nor fair of EPA to call for transporting the contaminated waste to an out-of-town landfill. Along with several other interested parties like the City of Pittsfield, a consortium of the  towns in South Berkshire County which bordered the River, Massachusetts Audubon, the Berkshire Environmental Action Team, HRI ad GE appealed the decision to EPA’s Environmental Appeals Board (EAB).

You can download and read GE’s brief here:

GEEABPetition

From the GE brief: “GE is committed to undertaking a comprehensive cleanup of the Housatonic Rest of River that fully protects human health and the environment, and that complies with the terms of the 2000 CD that was entered into by GE, EPA, the Commonwealth of Massachusetts, and the State of Connecticut.GE’s actions over the past 20 years reflect that commitment. Among numerous other things, GE has worked cooperatively with EPA and the Commonwealth, spending hundreds of millions of dollars to remove contaminated soil and groundwater from its former Pittsfield plant and surrounding areas to substantially reduce the movement of PCBs from the former plant site to the Housatonic River; two miles of the River have been dredged; and other sites in the area, including Silver Lake and Unkamet Brook, have been cleaned up. As a result of these actions, the environment has been improved and the River continues to support a robust, dynamic ecosystem of wildlife.

“GE is committed to undertaking a comprehensive cleanup of the Housatonic Rest of River that fully protects human health and the environment, and that complies with the terms of the 2000 CD that was entered into by GE, EPA, the Commonwealth of Massachusetts, and the State of Connecticut.GE’s actions over the past 20 years reflect that commitment. Among numerous other things, GE has worked cooperatively with EPA and the Commonwealth, spending hundreds of millions of dollars to remove contaminated soil and groundwater from its former Pittsfield plant and surrounding areas to substantially reduce the movement of PCBs from the former plant site to the Housatonic River; two miles of the River have been dredged; and other sites in the area, including Silver Lake and Unkamet Brook, have been cleaned up. As a result of these actions, the environment has been improved and the River continues to support a robust, dynamic ecosystem of wildlife.

“The Modified Permit should build upon this success, and GE has repeatedly affirmed that it is prepared to undertake a substantial dredging project in the Rest of River. However, as others, including the Massachusetts Executive Office of Energy and Environmental Affairs, have recognized, any dredging remedy must not destroy the unique and vibrant ecosystem that exists today on the Housatonic. Further, the remedy must meet the requirements of the CD, balancing benefits and impacts, and consistency with specific Rest-of-River remedy-selection criteria. Unfortunately, the EPA Rest-of-River Remedial Action fails both of these threshold requirements and fails to properly adhere to the science and the law.GE’s petition focuses on three fundamental flaws in EPA’s decision, although we have raised other concerns. First, EPA cannot arbitrarily impose an additional $250 million in costs for out-of-state disposal of sediment and soil from the Rest of River where there is no environmental benefit – and indeed there are adverse environmental impacts associated with the out-of-state transport of that material – and where safe, cost-effective local options exist.Second, EPA must clearly define the scope of the remedy; under the CD, the Agency cannot rely on vague, open-ended performance standards that leave the door open for future secondguessing. Finally, EPA cannot overreach, seeking to impose additional dredging that is not required to protect human health or the environment.

“For the past six years, GE has attempted to resolve our outstanding differences with EPA and the Commonwealth so that the Rest-of-River project could begin. Unfortunately, the Agency has disregarded virtually every legal, scientific and technical concern raised by GE. For that reason, GE is compelled to file this petition requesting that the Environmental Appeals Board address the material errors in EPA’s final Modified Permit for the Rest of River …

“For most areas of the Site, the CD specified the remediation that GE would implement and the Performance Standards for those remediation activities. Those activities have largely been completed. The CD did not, however, specify the remediation for the Rest of River. Instead, it established a process for the selection of the Rest-of-River Remedial Action in accordance with a RCRA permit incorporated in the CD (“CD-Permit”; Attachment 3). …

“With one potential – and specifically defined – exception, implementation of the specified Rest-of-River Remedial Action is the final step in the process. The United States has given GE a covenant not to sue, under which EPA may not seek to compel GE to conduct additional response actions unless: (1) there are new conditions or information; (2) EPA determines, based on those new conditions or information, that the Rest-of-River Remedial Action “is not protective of human health or the environment”; and (3) the additional response actions sought are related to that determination …

“2011: The Commonwealth submitted comments on the RCMS (“MA 2011 Comments”; Attachment 4), which expressed “vigorous” opposition to on-site disposal, and advocated disposal at a facility outside of Massachusetts. Id. at 18-19. It also maintained that all of the active remedial alternatives under consideration were too intrusive, and proposed its own remedial alternative avoiding dredging other than in certain impoundments of the River. 

“2014: EPA issued a draft modification of the CD-Permit, which identified its proposed Rest-of-River Remedial Action (A.R.558619). Ignoring the Commonwealth’s plea for a less intrusive remedy, the draft included the removal and disposal of approximately one million cubic yards of sediment and soil, impacting over 400 acres of habitat. EPA also proposed that all removed sediment and soil be transported to, and disposed of at, an out-of-state facility. At the same time, EPA issued a Statement of Basis for its proposed Rest-of-River Remedial Action (“Stmt. Basis”; Attachment 5), and a Comparative Analysis of Remedial Alternatives for the Rest of River (“Comp. Analysis”; Attachment 6). In October 2014, GE submitted detailed comments. (“GE Comments”; Attachment 7).

“2015: EPA notified GE of its intended final decision (A.R.582991). GE invoked its rights under the CD to administrative dispute resolution in October 2015 (A.R.583778).2016: The parties proceeded with formal dispute resolution pursuant to CD ^[135, submitting Statements of Position (and a Reply by GE) (“GE SOP”; Attachment 8; “Region SOP”; Attachment 9; “GE Reply”; Attachment 10). The Regional Administrator designated the Regional Counsel to issue a final administrative decision on the dispute; and the Regional Counsel issued his decision on October 13, 2016 (“Region Decision”; Attachment 11). On October 24, 2016, the EPA Region issued and served on GE the final Permit Modification to select a Rest-of-River Remedial Action (the “Modified Permit”; Attachment 1), accompanied by a Response to Comments (“RTC”; Attachment 12).

“CONTESTED CONDITIONS OF MODIFIED PERMIT: GE challenges the following Modified Permit conditions:(1) The requirement that all removed sediments and soils be sent to an off-site disposal facility even though on-site disposal is equally effective and much more cost-effective (Condition II.B.5);(2) and (3) The remedies for the Woods Pond and Rising Pond impoundments, whichrequire unnecessary, disruptive, and materially more expensive removal contrary to the CD’s remedy-selection criteria (Conditions II.B.2.e and2.g);(4) and (5) The overall Rest-of-River Remedial Action because EPA has notadequately considered the ecological harm that its remedy will cause, and because much less invasive and disruptive remedies would protect human health (Conditions II.B.2.a-II.B.2.g and II.B.3);(6) The Downstream Transport and Biota Performance Standards, which exceed EPA’s authority by deferring the specification of remedial actions contrary to the CD (Conditions II.B. 1 .a and II.B. 1 .b); …

“ARGUMENT

1. The Out-of-State Disposal Requirement Conflicts with the Consent Decree and Is Clearly Erroneous.

In the Modified Permit, EPA insists that all disposal – of about a million cubic yards of sediments and soil – take place at out-of-state facilities. Modified Permit Condition

“11. B. 5. ^ This requirement conflicts with the Rest-of-River remedy-selection criteria because it (1) would cost approximately a quarter-billion dollars more than on-site disposal, but (2) would be no more protective than on-site disposal, and (3) would not better satisfy the other CDimposed remedy selection criteria. The requirement is invalid, moreover, because it is improperly motivated by parochial concerns that the CD does not allow EPA to consider. EPA admittedly seeks to placate opponents of on-site disposal. However, state and local opposition is not a Rest-of-River remedy-selection criterion. Therefore, this aspect of the Modified Permit is arbitrary and capricious because EPA has “relied on factors which [the CD] has not intended it to consider.” Motor Vehicle Mfrs. Ass ‘n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).^{5 6} …

“B. Out-of-state disposal conflicts with the CD-Permit criteria.1. There is no benefit justifying the monumental cost disparity betweenon-site and off-site disposal.

Cost is one of the nine Rest-of-River remedy-selection criteria and, with respect to outof-state disposal, it is critical. There is no question that out-of-state disposal would be vastly more expensive than on-site disposal: EPA admits that it would add at least $160 to $245 million in cost, RTC at 267, while GE estimates an additional cost of $250 to $305 million, GE Comments at 25. EPA has failed to account for this disparity in its decision-making. This was error …

“In light of the enormous cost discrepancy here, it is not enough for EPA to determine that out-of-state disposal might be as effective as on-site disposal. Because the difference in cost is so large, EPA’s selection is not cost-effective, within the meaning of the case law and administrative guidance, absent a defensible conclusion that the difference in effectiveness (as measured by the non-cost Permit criteria) is very large too. Although EPA has belatedly assertedthat out-of-state disposal will be more effective, there is no basis for this claim in the administrative record.

2. On-site disposal is at least as protective and effective as out-of-statedisposal.

“EPA has admitted that disposal of PCB-containing sediment and soil in a properly designed and maintained on-site upland disposal facility “would provide high levels of protection to human health and the environment….” Stmt. Basis at 35. The Agency has long recognized that on-site disposal facilities are protective, particularly for waste containing PCBs. That is why EPA has selected on-site (or other local) disposal at numerous PCB sites throughout the country, including in Massachusetts. See GE Comments at Table 1, EPA RTC at Table 1; see also GE In
Reply at 11-12. Indeed, it is why EPA approved the use of on-site disposal facilities for sediment and soil from generally more contaminated portions of this Site. CD Appendix D at 38, 41 (noting that “PCBs are relatively immobile due to their low solubility in water,” and determining that on-site disposal “will not pose an unreasonable risk of injury to health or the environment”). Since “patently inconsistent applications of agency standards to similar situations are by definition arbitrary,” South Shore Hospital, Inc. v. Thompson, 308 F.3d 91, 103 (1st Cir. 2002), EPA’s insistence on out-of-state disposal for the Rest of River is presumptively arbitrary.* 8 (Emphasis added.) …

“Apart from the TSCA siting criteria, EPA offers nothing but conjecture in its calculation of the on-site half of the effectiveness equation. For example, EPA insists “that there is the potential for spills of leachate” during the potential transport of such leachate to GE’s water treatment plant in Pittsfield, and that if GE were to build a water treatment facility at the disposal site, “there is the possibility, despite best efforts to properly operate the treatment facility, to have releases of PCBs to the River.” RTC at 243 (emphasis added). Likewise, in its discussion of Control of Sources of Releases (the second General Standard enumerated in the Permit), EPA supports its decision with the statement that “[ejven with close EPA oversight of GE’s design, construction and operation of a landfill, there remains a non-zero potential for issues in the ability long-term for a landfill next to the River to control the sources of PCBs.” RTC at 244-45 (emphasis added) …

“To be sure, the Massachusetts hazardous waste regulations also prohibit a disposal facility in an ACEC, 310 CMR 30.708, and that prohibition is theoretically applicable to the waste at issue here. But that prohibition clearly would not apply to the Forest Street or Rising Pond disposal sites, or other on-site locations that may be identified, that are outside the ACEC, as EPA admits, RTC at 249. The prohibition could potentially apply to the Woods Pond Site, which is located within the boundaries of the ACEC, but its application there would be pretextual because the Woods Pond Site would occupy the grounds of a sand/gravel quarry where on-site disposal would not affect any of the resources of the ACEC. Even if a waiver were needed, it would be appropriate to grant one (and arbitrary not to grant one) since EPA has already decided to waive other ACEC prohibitions that would interfere with its selected remedy – e.g., a prohibition on dredging in an ACEC and on temporary waste management in an ACEC. See Attachment C to Modified Permit at C-8, C-13, C-15 …

4. EPA improperly relies on state and community opposition to on-sitedisposal.EPA has admitted that it selected out-of-state disposal in deference to state andcommunity opposition to on-site disposal. Region SOP at 44-50. Indeed, some Berkshire Countyresidents have vocally opposed siting a disposal facility in their figurative back yard, and theCommonwealth of Massachusetts has also “vigorously” opposed on-site disposal. However,public opinion is not a Rest-of-River remedy-selection criterion.

a. State and community opposition are not Rest of River remedy selection criteria.

State and community opposition are not among the nine Rest-of-River remedy-selection criteria …

II. The Remedy Selected for Woods Pond Conflicts with the CD and Is Clearly Erroneous.

The Modified Permit requires GE to conduct deep dredging and placement of an engineered cap throughout Woods Pond so as to achieve a minimum post-capping water depth of 6 feet. Modified Permit Condition II.B.2.e. Like the selection of out-of-state disposal, this element of EPA’s Rest-of-River Remedial Action is disproportionately expensive and disruptive when compared to a smaller alternative that would be equally effective. To justify its decision,EPA improperly minimizes the real costs that will be incurred, while emphasizing a handful of dubious and speculative benefits that might be generated.¹⁵

EPA admits that its remedy would require GE to remove at least 285,000 cubic yards of sediment from Woods Pond, RTC at 161; and GE estimates that the work would actually involve the removal of approximately 340,000 cubic yards of sediment. GE Comments at 41. This is in contrast to smaller alternatives involving (1) the removal of sediment in the shallower portions of the Pond as necessary to place a cap, and (2) as with EPA’s remedy, placement of a cap over the entire Pond. During discussions with EPA and the States in 2012, GE presented one such alternative, involving removal to a depth of nine inches in the shallower portions of the Pond, for a total removal of 44,000 cubic yards of sediment, and capping of the Pond. GE Presentation Slides from December 7, 2012.¹⁶ EPA’s remedy would be far more costly than this alternative, and others that are similar, in two significant ways. First, it would be much more expensive. The selected remedy will cost about $165 million. EPA admits that this is at least $80 million more than the alternative described above, and acknowledges that, by GE’s estimate, the disparity may be as big as $130 million. RTC at 163.¹⁷

Second, EPA’s remedy for Woods Pond will have much greater community and environmental impacts. For example, because of the greater removal volume, GE estimates that the selected remedy would require 39,000-46,000 truck trips to import and export materials, and would produce 51,000 tonnes of greenhouse gas (“GHG”) emissions. The smaller alternative described above would require about 75% fewer truck trips, and reduce GHG emissions by almost 90%. GE Comments at 43 and Tables 13-14.

EPA cannot deny that these impacts will occur. Instead, it argues that any negative impacts of its selected remedy will be outweighed by its benefits. RTC at 162-163. These asserted benefits, however, are either irrelevant under the CD or inherently speculative or both.

In large part, EPA rationalizes its decision by assuming that bigger is better, i.e., that deeper dredging should take place simply because the remediation of Woods Pond “represents the opportunity to remove a significant mass of PCBs from the river system….” RTC at 162. EPA has repeatedly given “mass removal” as the reason for its selection. See id. (“At issue here is the opportunity to permanently remove the risks posed by approximately 285,000-340,000 CY … of PCB-contaminated sediment”); id. at 163 ( remedy “will remove a significant mass of PCBs”); Region SOP at 28 (“There is no other point on the River where it is possible to remove over 285,000 CY of PCB contaminated material from a single location”).

In other words, EPA asserts that a remedy which requires more removal is necessary because it will require more removal. That isn’t an application of the mandated remedy-selection criteria. The Rest-of-River remedy-selection criteria do not include “mass removal.” As far as the CD is concerned, size does not matter (except insofar as a bigger remedy may be more costly). The selected remedy, requiring the expenditure of tens of millions of extra dollars and the emission of thousands of tonnes of extra GHGs, would be contractually pennissible only if the additional impacts could be justified on the basis on one or more of the remedy-selection criteria – e.g., in terms of additional protectiveness, long-term effectiveness, etc …

First, projections using EPA’s own model show that, compared to EPA’s remedy, a smaller sediment removal alternative, such as the alternative described above, would result in: (1) the same reduction in PCB concentrations in fish in Woods Pond and in all of the downstream impoundments in the River, and (2) comparable reductions in direct contact and ecological risks (reaching surface sediment levels far below any threshold for such risks). See GE Comments at 41-42 and Figures 8-a through 8-j. Indeed, EPA concedes “that sediment removal sufficient to place a properly designed, constructed, operated and maintained Engineered Cap in perpetuity might achieve the same reductions as this greater PCB removal for certain risks, such as fish consumption, direct contact, and ecological risk in Woods Pond itself.” Region SOP at 28; RTC at 162.

EPA nevertheless justifies its vastly more expensive and intrusive remedy on the theory that greater “mass removal” might be more effective in the long tenn because an engineered cap might not be “properly maintained and operated in perpetuity to resist floods and ice-scour ” and that there might someday be a “breach or failure of Woods Pond Dam.” RTC at 162. “After all,” EPA says, “even with the best intentions and significant resources, it is impossible to guarantee that there will never be a dam breach or a failure in perpetuity, even if GE remains the dam owner in perpetuity, including unknowns or uncertainties associated with potential climate change.” Id.”

While GE argued for a less rigorous clean up, HRI made the opposite case.

The Housatonic River Initiative (HRI), the EPA Technical Assistance Grant Recipient for the GE/Housatonic River Site, welcomes this opportunity to comment to the Environmental Appeals Board (EAB) regarding EPA Region I’s proposed GE/Housatonic River Rest of River Remedy.

HRI appeals EPA’s Rest of River Remedy for the following reasons:1) EPA allows GE to leave too many toxic PCBs in both riverbank soils and river sediments when there are demonstrably effective and ecologically sound ways to first, remove them from the environment, and then second, successfully restore the environment that has been remediated. EPA’s Rest of River Remedy unnecessarily allows these remaining PCBs at high levels to continue to put both human health and the health of wildlife and the environment at risk.

2) EPA arbitrarily and without significant or sufficient scientific analysis, unnecessarily neglects CERCLA Section 9621(b)’s preference for alternative remedial technologies. Not only has Region I failed to mandate a Conceptual Site Model for analyzing the potential for bioremediation or other potential alternative remedial technologies, or mandating pilot tests for such technologies, its Final Remedy relies in part on the unproven Monitored Natural Recovery remedy for several sections of the River. Choosing not to mandate the treatment and significant reduction of PCB-contaminated sediment and bank soil results in the unnecessary landfilling of great amounts ofcontaminated material. This decision therefore perpetuates unnecessary risks to human health and the environment. Not only that, GE’s appeal of Region I’s Remedy and its claim that mandating off-site disposal is “arbitrary and capricious” makes it quite possiblethat this unnecessary landfilling will ultimately be located in one or more of our home communities in South Berkshire County, Massachusetts.(CERCLA, https://www.law.cornell.edu/uscode/text/42/9621).

(U.S. EPA Contaminated Site Cleanup Information (CLU-IN) Bioremediation Overview https://clu-in.org/techfocus/default.focus/sec/Bioremediation/cat/Overview/ (Page 1-2)

(GE “Dispute of EPA’s Intended Final Decision Selecting Rest of River Remedy Submission of GE’s Statement of Position” January 19, 2016).(https://semspub.epa.gov/work/01/586218.pdf)

THE ARGUMENT: HOW EPA’S REST OF RIVER REMEDY FAILS TO EFFECTIVELY PROTECT PUBLIC HEALTH AND THE ENVIRONMENT

HRI believes that EPA’s decision to “consolidate” with both the Commonwealth of Massachusetts and GE has resulted in a Final Remedy that sacrifices scientific rigor for political expediency. EPA’s scientific analysis of the PCB contamination of the Rest of River – an analysis based on its extensive studies of human health and ecological risks -and the development of the most logical and most appropriate Remedy that follows from such analysis has been unnecessarily compromised.

Much as the inadequate 1980 GE Stewart Report influenced events for years, (see Appendix A) GE’s Corrective Measures Study (CMS) and the limitations it brought to the process was critical to the development of the Final Remedy for the Rest of River. So let us restate our problems with the CMS. Given the bias GE brought to the process, an analysis shaped by their desire to save as much money as possible, the most comprehensive removal option that GE included in its range of remediation scenarios forthe Rest of River was SED 8/FP 7. That option called for the “Removal of 2,252,000 cy of sediments (followed by backfilling) from 351 acres of the River, including all of Reaches 5A, 5B, and 5C, the Reach 5 backwaters, Woods Pond, the Reach 7 impoundments, and Rising Pond … Stabilization of both riverbanks in Reaches 5A and 5B (total of 14 linear miles considering both banks), including removal of 35,000 cy of bank soil … MNR in the remaining portions of the River in the Rest of River area; and … Removal of 615,000 cy of floodplain soil (followed by backfilling) from 377 acres in various habitat types of the floodplain.” (GE Revised Corrective Measures Study (CMS) Report, Housatonic River – Rest of River, 10/11/2010, Part 2, Page 8-6).https://semspub.epa.gov/work/01/580275.pdf

SED 8/FP 7 calls for the removal of a total of 2,902,000 cy of combined contaminated sediment and bank soil.

GE quickly rejected a large-scale remediation and dismissed option SED 8/FP 7: “The basic problem is this: the Rest of River is a flourishing ecosystem. The more aggressively you work to remove PCBs from this ecosystem, the more you damage it in the name of ‘remediating’ it.

“Removing or capping sediments in the bottom of the River to address PCBs will have similar consequences. The more sediment you dredge, the more you displace fish and change the nature of the riverbed and its hospitability to aquatic life. Likewise, the more soil you remove from the floodplain, the more you change the nature of the floodplainand its hospitability to the plants and animals that currently live there (including the sensitive species living in the area’s dozens of vernal pools and other areas …At some point, the balance tips and you will find yourself, as the Boston Globe entitled a 2008 editorial about the Housatonic, “Destroying a river to clean it.” This is in nobody’s interest.” (CMS, Executive Summary, 1-2).

GE’s solution: “Answering the question of what to do about the Rest of River, then, comes down to a comparison of what we do know and don’t know. We know that the Rest of River is flourishing without any remediation at all. We know that the less intrusive removal alternatives will fully protect human health using EPA’s assumptions. We don’t know how much damage the Rest of River can bear from an attempt to remove more PCBs.

“Therefore, GE believes that the least intrusive approach – “Monitored Natural Recovery” – is best here … SED 10/FP 9 has been carefully designed to minimize the severe harm that will result from more invasive measures, and it will still meet all of EPA’s human-health based goals (except for those relating to fish consumption, which can’t be achieved by any remedial alternative).” (CMS, Executive Summary, 3)

SED 10 calls for “Removal of sediments to a depth of 2 feet in portions of Reach 5A that have been selected to avoid or minimize ecological harm, and removal of sediments to a depth of 2.5 feet in portions of Woods Pond that contain elevated PCB concentrations, without subsequent capping or backfilling.” (CMS, 6-2) Which translates to the removal of 235,000 cy of sediment, the removal of 6,700 cy of riverbank soil, and the capping of 20 acres. (CMS, Executive Summary, 9, Emphasis added).

FP 9 “would involve the removal of approximately 26,000 cy of soil from approximately 14 acres of the floodplain.” (CMS 7-189) GE’s preferred option SED 10/FP 9, then,would require the company to remediate and remove a total of 267,700 cy. (CMS, Executive Summary, 12).

Quite the striking contrast to the most rigorous remediation option studied, SED 8/FP 7,which calls for the removal of 2,902,000 cy of combined contaminated sediment and bank soil.

HRI strenuously objected to GE’s claim that “the Rest of River is flourishing without any remediation at all.” As we stated in our Comments: “GE continues to deny the scientific evidence that PCBs cause cancer and other adverse health effects in humans, or that PCBs cause any harm to ecosystems and ecological receptors. The CMS flies in the face of scientific evidence and ignores the independent scientific research, citing instead the work of their own scientists or scientists funded by GE. The international scientific community long ago recognized the dangers and toxicity of PCBs; GE‘s continued denial simply undermines the credibility and scientific veracity of the CMS.” (Comments on Housatonic River Corrective Measures Study Submitted to EPA by GE Corporation, October 2010 prepared by ESC, LLC, Dr. Peter L. deFur, January 19, 2011, On behalf of Housatonic River Initiative, Page 2). (https://d10k7k7mywg42z.cloudfront.net/assets/4d3843d4dabe9d135c00008f/final_comments_cms_11911.pdf)

Sadly, some of this analysis has been accepted by the Commonwealth and made its way via negotiations with EPA and GE into the Final Remedy.

Considering GE’s less than comprehensive analysis of treatment/disposition alternatives and the significant absence of a larger range of alternative technologies in the CMS, including but not limited to many varieties of in-situ technologies like Bioremediation, Phytoremediation, and Sediment Ozonation, HRI’s preference among the very limited alternatives covered by the CMS would be “TD 5 (thermal desorption)” which “would provide human health protection by reducing the PCB concentrations in the sediments and soils, followed by on-site reuse and/or off-site disposal of those treated materials and off-site disposal/destruction of the liquids containing the condensed PCBs … From an environmental perspective, TD 5 would provide protection of ecological receptors from potential exposure to PCBs for the same reasons discussed for human receptors.” (CMS, 9-154)

For an examination of possibly relevant and appropriate alternative technologies for Rest of River see “EPA Technology Alternatives for the Remediation of PCB Contaminated Soils and Sediments, EPA/600/S-13/079.”)(https://clu-in.org/download/contaminantfocus/pcb/PCB-EPA-600-S-13-079.pdf)

When GE combined the costs of the most comprehensive cleanup SED 8/FP 7 with treatment option TD 5, it concluded it would cost them “approximately $3.0 billion.” (CMS, 10-4.)

Rather than opt for treatment, “GE has also concluded that the excavated sediments and soils should be placed in a secure disposal facility built near the River but outside the floodplain, which will avoid the detriments of the other disposal and treatment options, especially with larger removal volumes.” (CMS, Executive Summary, 3)

We appreciate EPA’s continuing burden to balance the need to protect human health and the environment with the imperatives of CERLA to consider the cost-effectiveness of potential remedies. But we suspect that our community is impacted by this balancing act in ways the EAB may not be aware of.

HRI and the citizens of Berkshire County have often been affected by the occasional collision of the diligent enforcement of environmental law and the changing imperativesof bureaucratic and political pressure. Sadly, we have suffered at the hands of both lazy and incompetent regulators at the state level, and have watched as some of the best and brightest and most competent regulators and best environmental scientists have been replaced or made to feel unwelcome.

EPA renewed its commitment to the GE/Housatonic River Site when Attorney Douglas Luckerman and Mr. Bryan Olson came to the Berkshires. Mr. Luckerman’s vigorous commitment to protect human health and the environment became increasingly inconvenient to his higher ups at Region I and in Washington, DC and he left the Agency. Recently Massachusetts DEP let go of some of its most competent regulators. Then Susan Svirsky, EPA Rest of River Project Manager, who did a remarkable job of cataloguing the environmental impacts of a wide spectrum of species in the river system opted to leave at a most crucial moment.

Sadly, there is a pattern to this two-phase process. The first is the information-gathering phase when environmental science is at the fore. Then there’s the second phase when the accumulated science is subject to negotiation. This is when the most rigorous defenders of science disappear and their more politically-minded colleagues prevail.

HRI believes that the Commonwealth of Massachusetts has been affected by pressure from GE. For example, Mr. Robert Durand, the highly influential former head of Massachusetts Executive Office of Environmental Affairs (EOEA) is currently doing work for GE. (http://www.durandanastas.com/clients/).

According to environmental journalist Eric Goldscheider, “As the top lawyer with the Massachusetts Department of Environmental Protection, Ralph Child led his agency’s charge against GE during the negotiations that culminated last October in the cleanup agreement now awaiting approval by a federal judge. Then in January, he left his state post to work for Mintz Levin, a Boston law firm that represents GE and had defended the corporation against criminal allegations that the company hid documents relating to PCB contamination in Pittsfield. Many of the negotiating sessions over the Pittsfield agreement took place in the Boston office of Mintz Levin.”(http://www.eric-goldscheider.com/id68.html)

Accordingly, HRI is not surprised that the Commonwealth and its DEP, which now suffers from the absence of its most talented researchers and influenced by the political and economic power of GE has adopted GE’s unscientific and impossible to prove refrain that a rigorous remediation of the Rest of River will destroy the river, not save it.

Commenting on the CMS, the Commonwealth states: “After extensive review of the remedial alternatives presented to date, the Commonwealth has concluded that none of the current combinations of alternatives achieve the remediation goals withoutcausing irreparable harm to this unique, diverse and vital ecosystem that has been designated by the Commonwealth as an Area of Critical Concern (ACEC) … Our proposed approach is to remove PCBs when needed to protect human health, or when compelling goals may be achieved without causing ecological harm. This means that our approach leans away from performing intrusive work in the name of meeting purported ecological goals; because in virtually all instances the actual and inevitable damage to this existing, unique ecological resource will far exceed the theoretical benefit of lower PCB concentrations.” (Commonwealth of Massachusetts CMS Comments, January 31, 2011, Page 1, Emphasis added).(http://www.mass.gov/eea/docs/dep/cleanup/sites/housatonic-comments-correctivemeasures-study.pdf)

“The Commonwealth’s proposal is quite similar to GE’s. Remove 286,000 cy of sediment from Woods Pond, refrain from any bank or river excavation and stabilization because “this work is not necessary to meet the human health goals identified by the EPA (due to the low concentrations of PCBs) and will inevitably cause severe and long-lasting destruction of the Housatonic River ecosystem and state-listed rare species, which far outweighs any environmental benefits from PCB removal.”In the floodplain, focus on locations totaling 57 acres where there are significant PCB concentrations. Avoid excavation in the highly sensitive rare species habitats and use institutional controls to address public health risk. In the less sensitive areas in this location, a combination of institutional controls, site-wide averaging and carefully targeted excavation should be used to address the risk.” (Commonwealth of Massachusetts CMS Comments, January 31, 2011, Page 2, Emphasis added).

But GE’s and the Commonwealth’s position contradicts the obvious success of the previous 2 Mile remediation and restoration … While GE and the Commonwealth both contend that a rigorous cleanup will irrevocably destroy the Housatonic River ecosystem, such a claim is unsupported by recent experience and is designed, instead, to frighten the public and unduly influence the remedy selection process.

But beyond photographic and visual evidence, the U.S. Army Corps of Engineers in its 2007 “Post-Remediation Sediment Sampling Report 1.5-Mile Reach Removal Action”conclusively demonstrated that EPA not only successfully reduced PCB levels in the 1.5 Mile Reach from 1,534 parts per million to less than 2 parts per million but successfully restored the sensitive areas of the River: “The sediments collected in remediated and restored areas of the 1.5 Mile Reach have total PCB concentrations ranging from nondetect … to 1.9 ppm with an average total PCB concentration of 0.17 ppm.” (Page 4)(http://citeseerx.ist.psu.edu/viewdoc/download;jsessionid=5465D2FC6A792B7C735E165B35AC29A4?doi=10.1.1.642.6250&rep=rep1&type=pdf)

The Army Corps also inventoried the health of benthic macroinvertebrates and aquatic organisms, typically insects of the river bottom. Having documented the health of benthic macroinvertebrates in 2000 before EPA began the cleanup, they had a clear before and after comparison: “A substantial decrease in tissue PCB concentrations, a reduction of more than 99 percent between the 2000 and 2007 collections, is evident and indicates the effects of the remediation, which was also reflected in the sediment PCB concentrations.” (Post-Remediation Aquatic Community Assessment 1 1⁄2 Mile Removal Reach, Page 6, Emphasis added).

“Fish diversity may increase some in the future as woody debris and aquatic vegetation become more prevalent. The abundance and diversity of fish species identified appears to indicate good water and habitat quality.” (Page 9, Emphasis added).(http://citeseerx.ist.psu.edu/viewdoc/download;jsessionid=5465D2FC6A792B7C735E165B35AC29A4?doi=10.1.1.642.6250&rep=rep1&type=pdf)

“A dispassionate examination of GE’s and EPA’s record remediating and restoring the 2 Miles of the River clearly supports the conclusion that a more thorough option like SED 8/FP 7 could successfully be accomplished, best protecting human health and the environment by remediating, then effectively restoring the Rest of River.

On April 7, 2011, Region I invited Keith Bowers of Biohabitats, Inc. to speak as part of its 3-day MiniWorkshops on The Rest of River. Mr. Bowers highlighted a series of highly successful restoration projects at a variety of challenging sites: the restored stream and wetland/floodplain habitats and restored native plant communities and instream habitat to support a trout fishery at the Loring AFB site; the Provo River site in Salt Lake City, “a multiple-thread channel with complex floodplain features, oxbows, side channels and floodplain wetlands” which was restored (Page 259); the Nine Mile Run site in Pittsburgh, PA, “a large, urban channel with adjacent contaminated soils” where there was “channel stabilization, in stream aquatic habitat enhancement, floodplain reconnection and wetland creation” (Page 261); and the North Gray River Restoration in Maryland which restored “complex riparian wetlands/bogs and vernal pools … Restored stream and wetland/floodplain habitats … Restored native plant communities … Restored habitat to support RT&E species.” (“Ecological Restoration: Perspectives and Applications for the Housatonic River,” Page 261)

Mr. Bowers noted that “Some fear that disrupting these natural processes will result in irreparable harm to the ecosystem. However, analysis of historical documents and maps of the River reveals a history of alterations in the River associated with a number of human activities. An altered river channel is inherently unstable due to factors such as the increase in channel gradient and stream power associated with a shortened stream length if the river is straightened … Active ecological restoration can accelerate the full recovery not only of past human impacts, but also of impacts caused by remediation, often in a few decades …

There are multiple, diverse, challenging restoration projects successfully completed in different parts of the country. All of these belie the contention of the Commonwealth and GE and now regrettably EPA that a sensitive and competent complete river remediation project is impossible. Instead, they definitively demonstrate that remediation coupled with a rigorous restoration component can save a river not destroy it. For example:(http://www.biohabitats.com/projects/kingman-lake-wetland-restoration/ and (http://www.biohabitats.com/projects/nine-mile-run-aquatic-ecosystem-restoration/) …

HRI expressed our particular concern that GE, EPA and the Commonwealth have inadequately accounted for the effect of volatilized PCBs in the Housatonic River ecosystem: “PCBs have the ability to volatize and release into the air. Biphenyls with 0–1 chlorine atom remain in the atmosphere, those with 1–4 chlorines gradually migrate toward polar latitudes in a series of volatilization/deposition cycles, those with 4–8 chlorines remain in mid-latitudes, and those with 8–9 chlorines remain close to the source of contamination (Wania and Mackay 1996). PCBs enter the atmosphere from volatilization from both soil and water surfaces (Hansen 1999). Vapor-phase PCBs accumulate in the aerial parts of terrestrial vegetation and food crops by vapor-to-plant transfer (Bohm et al. 1999, ATSDR 2000). This can explain why local food and home gardens may be a significant source of PCB exposure.” (HRI Comments, Appendix A, Pages 22-23).

“Though PCBs in sediment are common sources of exposure for fish, they can also influence atmospheric concentrations of PCBs. Martinez et al (2010) quantified the release of PCBs from Indiana Harbor and Ship Canal to Lake Michigan and the atmosphere. It was determined that 4 ± 0.05 kg of total PCBs were released from the sediment to the water and 7 ± 0.1 kg of total PCBs were volatilized from the water to the air annually (Martinez et al. 2010) … (HRI Comments, Appendix A, Page 18, Emphasis added).(https://d10k7k7mywg42z.cloudfront.net/assets/4d3843d4dabe9d135c00008f/final_comments_cms_11911.pdf)

“In support of our comments, please note in 2000 the World Health Organization (WHO) declared that: “The universal distribution of PCBs throughout the world, suggests that PCBs are transported in air … The ability of PCBs to co-distil, volatilize from landfills into the atmosphere (adsorption to aerosols with a particle size of < 0.05–20 µm), and resist degradation at low incinerating temperatures, makes atmospheric transport the primary mode of global distribution. In a study in the USA, 92% of the PCBs detected were in the vapour phase.” (Chapter 5.10 Polychlorinated biphenyls (PCBs), Air Quality Guidelines – Second Edition © WHO Regional Office for Europe, Copenhagen, Denmark, 2000, Page 1, Emphasis added).(http://www.euro.who.int/__data/assets/pdf_file/0016/123064/AQG2ndEd_5_10PCBs.PDF)

Similarly, Nancy Bettinger of DEP’s Office of Research and Standards in a slide presentation entitled “Do Waste Site Risk Assessments Adequately Address Endocrine Disruption Effects?” reports: “Endocrine disrupting chemicals found at waste sites can have effects at environmentally relevant concentrations. Endocrine effects have been reported at concentrations that are: lower than risk-based concentrations conventionally derived for site management, and/or consistent with ambient air exposures not normally assessed at waste sites.” Bettinger cited several examples where “Low-level site-related exposures could affect human endocrine systems.”

“HRI concluded in its CMS Comments: “Given the ability of PCBs to volatilize, people living or working around contaminated sites can inhale in low doses of PCBs … There is a growing body of evidence that supports the claim that people who live in the vicinity of contaminated sites have a higher PCB concentration in their tissues than the general population … When compared to the general public, people living in the vicinity of a PCB- contaminated site are subject to a higher risk of PCB exposure and associated health effects. This risk increases because PCBs impact the community’s air, gardens, and local food systems. In these communities, historical PCB institutional controls, like fish advisories, will not be sufficient to protect human and ecological health.” (HRI Comments, Appendix A, Page 24, Emphasis added) …

“In October 2011, EPA’s National Remedy Review Board (NRRB) made note of the significant dispute between DEP and Region I “concerning the interpretation and application of some of the criteria for remedy selection. Particularly noteworthy are the differences in perspectives on the balancing of short-term and potential long-term environmental impacts from remedy implementation and the reduction of long-term risks predicted to be achieved by a protective remedy. The presentation by the Commonwealth indicated that it sees the impacts to Commonwealth-listed species resulting from the need to control stream meandering as a long-term impact whereas the Region contends that habitat restoration and other impact reduction measures will be effective in meeting the requirements of the Commonwealth’s endangered species law and therefore any impacts will be only short-term. (Emphasis added.)

“The Commonwealth’s presentation also indicated that it believes the long-term ecological risks (e.g. adverse effects to mink and wood duck) were acceptable when balanced against the impacts of remediation on habitat loss. Alternately, EPA sees these long-term ecological risks as requiring remediation to meet the threshold criteriafor selecting a remedy that is protective. The Boards recommend that the Region consolidate the discussion on the documented ecological impacts at the site and compare them to the Agency’s requirements under the CERCLA and the RCRA Permit to select a remedy protective of all identified receptors (assessment endpoints). This consolidated presentation will allow for a direct comparison of short-term and long-term risks and impacts and how these risks are balanced, justified and consistent with remedy selection criteria in any decision documents.

“The Boards note that CERLA and the RCRA Permit identify protectiveness of human health and the environment as a threshold criteria that all remedies must achieve. Furthermore the NCP states that the use of institutional controls should supplement (not substitute for) active response measures (e.g. ICs should not substitute for active response measures as the sole remedy unless such active measures are determined to be not practicable).” (The National Remedy Review Board’s October 20, 2011 Recommendations for the Housatonic River, Rest of River Site, Page 4, (Emphasis added).

Additionally, HRI echoes the concern of the NRRB that both the Commonwealth’s and EPA’s proposed remedies “would leave large quantities of PCBs in floodplain soils. In the future, EPA may determine that leaving this remaining waste on site is not protective of human health and the environment. Therefore the Boards recommend that the Region consider including a contingency remedy (e.g. pursuing other response actions in an adaptive framework) in the decision documents that would describe a cleanup approach resulting in more risk reduction through additional floodplain soil source removal or other active remediation alternatives.” (NRRB October 20, 2011 Recommendations, Page 5, (Emphasis added).(http://semspub.epa.gov/work/01/75001064.pdf).

Unfortunately, HRI and the public were excluded from these critical conversations. As a result of these negotiations the EPA has moved closer to the Commonwealth’s position, and in the process closer to GE’s position, even contradicting some of its own prior analysis. For example, Region I compromised its commitment to, and advocacy of, the efficacy of restoration, abandoning its view, as the NRRB noted: “that habitat restoration and other impact reduction measures will be effective in meeting the requirements of the Commonwealth’s endangered species law and therefore any impacts will be only shortterm.

“Instead Region I in its Remedy abstains from the appropriate remediation of some sensitive areas in favor of the unscientific, unproven Monitored Natural Recovery. Rather than fully remove the threat to human health and the environment, EPA relies upon institutional controls in some sections of the riverbank and in maintaining fish and waterfowl advisories.This is revealed in the following selections from EPA’s June 2014 “Statement of Basis for EPA’s Proposed Remedial (RA) for the Housatonic River ‘Rest of River”: “Consistent with actions at other contaminated sediment sites, this Proposed Remedial Action relies on a combination of cleanup approaches that apply to specific “reaches” of the river, as described below:

• Removing and capping PCB-contaminated sediment in some reaches in the Housatonic River.
• Monitoring natural recovery in some reaches in the Housatonic River.
• Removing PCB-contaminated soil from some areas in the 10-year floodplain adjacent to the river, including vernal pools, and restoring affected areas.
• Stabilizing PCB-contaminated erodible river banks that are a source of PCBs that could be transported downstream, focusing on the use of bioengineering techniques in restoring any disturbed banks
• Transporting and disposing of all excavated contaminated soil and sediment off-site at existing licensed facilities approved to receive such soil and sediment.
• Placing restrictions (Institutional Controls) on eating fish, waterfowl, and other biota where PCB tissue concentrations pose an unacceptable risk unless/until suchconsumption advisories are no longer needed, as well as restricting other activities that could potentially expose remaining contamination … (Emphasis added.) …    

“EPA’s preferred alternative or Proposed Remedial Action is Combination Alternative 9 (SED9/FP4 MOD with TD1).Combination Alternative 9 requires excavation and capping/restoration of sediment, river banks and floodplain soil in certain areas to protect human health and the environment while seeking to avoid, minimize or mitigate unacceptable impacts to state-listed species and their habitats and the Area of Critical Environmental Concern (“ACEC”). The Proposed Remedial Action also includes disposal of all excavated contaminated soil and sediment off-site at existing licensed facilities approved to receive such soil and sediment, with a preference to maximize transport via rail. The proposed Performance Standards and corrective measures required to implement this cleanup are outlined in the Draft Permit. EPA’s Proposed Remedial Action was developed in consultation with MassDEP, MassDFG, and CT DEEP.” (GE-Housatonic River, Statement of Basis, Page 4, Emphasis added).

EPA writes: “The Draft Permit includes the Performance Standards and corrective measures necessary to meet the Performance Standards to address unacceptable risks to human health and the environment, and reduce the potential for downstream transport of PCBs, while minimizing adverse impacts to state-listed species and their habitats and being sensitive to the characteristics of the Rest of River and related biodiversity which formed the basis of the ACEC designation in a portion of the study area. Also based on this analysis, certain areas in the river and floodplain will be left undisturbed, including a large part of Reach 5B … The Proposed Cleanup Plan provides for the isolation of PCB contaminated sediments to reduce the risk to human health and the environment. Any remaining contamination will be monitored over the long term to evaluate the continued effectiveness of the remedy.“Additionally, while EPA acknowledges that “PCBs detected in Housatonic River floodplain soil, sediment, and biota show little degradation over time in any media.” (GEHousatonic River, Statement of Basis, Page 13) it nevertheless decides that “certain areas in the river and floodplain will be left undisturbed, including a large part of Reach 5B.” (GE-Housatonic River, Statement of Basis, Page 11, Emphasis added).(https://semspub.epa.gov/work/01/558621.pdf)

The NRRB wrote: “In the future, EPA may determine that leaving this remaining waste on site is not protective of human health and the environment.” We ask the EAB to intervene and speed up this timetable. Otherwise we will be left with a partial regime of Monitored Natural Recovery for sections of the Rest of River. Mike Palermo of Mike Palermo Consulting participated in Region I’s MiniWorkshops.He noted: “The major disadvantages of MNR are that contaminated sediment is left in the aquatic environment for the long time it takes natural processes to reduce risks, and there is the potential for future disruption of buried contaminants by storms, floods, or other events. Therefore, a rigorous evaluation of the likelihood of these events occurring must be a component in selecting MNR.”(“Remediation Technologies and Techniques,” Page 219, Emphasis added). (https://semspub.epa.gov/work/01/508641.pdf)

Ed Garland of HDR/HydroQual in his “PCB Transport and Fate Processes in the Housatonic River” presentation to the MiniWorkshops noted that “EPA learned that some riverbanks upstream of Woods Pond are not stable and are eroding. When banks erode, they put PCBs back into the water and the sediment bed. Riverbanks account for nearly half of all PCBs entering the River. The data show that the River floodplain is heavily contaminated with PCBs because when floods occur, PCBs move onto the floodplain. The data also show that PCBs are present throughout the riverbed at concentrations that vary widely over very short distances (i.e. feet). This means that PCB contamination is extensive and that there are no hotspots (small areas that are large PCB sources.)” (Page 153)

He stated: “Sediment transport is very active, so PCBs deeper in the riverbed are not always permanently buried. Like riverbanks, the riverbed is subject to erosion and deposition. Sediment eroded from the bed carries PCBs into River water where it is transported downstream. Similarly, sediment that settles brings PCBs back to the bed where they may be picked up and transported downstream at a later time. Several feet of erosion can occur over time, re-exposing PCBs once located deep in the bed.” (Emphasis added.) …

Mark Velleux, Ph.D, HDR|HydroQual noted in his “Why Use Models for the Housatonic River?” presentation at the MiniWorkshops that: “PCB concentrations in the River can potentially change over time…Importantly, monitoring data and modeling results document that there are no hotspots (small areas that have much higher PCBs levels relative to other areas) in the first 10 1/2 miles of Rest of River. The results also show that the River is not cleaning itself fast enough to significantly reduce risks in the foreseeable future. PCBs from riverbanks and the riverbed continue to move downstream and can be deposited on the floodplain. The riverbanks in Rest of River account for nearly half the PCBs going into the River.” (Page 160, Emphasis added)(https://semspub.epa.gov/work/01/508641.pdf)

Based on Garland’s and Velleux’s analysis, HRI believes there are incontrovertible and unnecessary risks to human health and the environment incurred by leaving significant levels of PCB contamination in this ever-changing river system. PCBs are continually moving from riverbanks and the bottom of the River. Any contamination that is left will remain a continuing threat. These risks are in no way mitigated by relying on an inefficient and ineffective Monitored Natural Recovery regime as any part of EPA’s remediation strategy.

On April 11, 2011, Susan Svirsky, EPA Rest of River Project Manager at the time, noted: “PCBs in the Housatonic River and floodplain are posing a risk to humans and are harming many species of wildlife. These risks and harm will continue as the PCBs are not going away or being buried in the foreseeable future (>250 years).”(“Environmentally Sensible Remediation Concepts,” Page 225, Emphasis added).(https://semspub.epa.gov/work/01/508641.pdf)

EPA and GE might make a more reasonable case for Monitored Natural Recovery if there wasn’t already a clear track record of effective large-scale remediation and successful restorative of the sensitive habitats of the Two Mile section of the River. Thanks to EPA’s experience and the testimony of EPA consultants like Keith Bowers, we know, that however challenging restoration may prove in the Rest of River, there is significant experience in river restoration in similar and successful projects throughout the country … 

Yet EPA neglects its own significant successes remediating and restoring the vernal pools and sensitive habitats of the first 2 Miles. EPA writes: “However, Combination Alternatives that fundamentally impact the dynamic, meandering character of the river or require extensive excavation in habitats supporting state-listed species (such as Combinations 6 and 7) may result in reduced longterm effectiveness because of potential long-term adverse effect on the environment. As a result, Combination 9, which includes more excavation than most alternatives, but also provides the most measures and procedures to preserve and protect the river’s sensitive ecosystem, including its array of state-listed species habitats, provides the best balance in terms of reducing residual risk and minimizing long-term ecological impacts.”

“(GE Housatonic River, Statement of Basis, Pages 30-31, Emphasis added).Oddly, EPA almost immediately makes the very claim HRI is pressing: that a wellplanned, rigorous and sensitive restoration plan can mitigate the short-term dislocation and disruption of sensitive habitats. To use EPA’s own language: “reducing residual risk and minimizing long-term ecological impacts.

”EPA notes: “All active alternatives would require restoration and compliance with relevant ARARs to mitigate the impacts of the remediation. Restoration is expected to be effective and reliable, returning habitats to their pre-remediation state for all active alternatives on a timeframe appropriate for the type of habitat being restored (e.g. a floodplain forest will take longer than an emergent wetland).” (GE-Housatonic River, Statement of Basis, Page 31, Emphasis added).

“Again, let us reiterate. We know from the successful restoration of the Housatonic and work done in river systems across the country that we can successfully restore sensitive habitats and in the long term recreate safe habitats for wildlife.” …

“Re EPA’s decision to leave significant amounts of PCBs in the River, HRI and Peter deFur, Ph.D. have previously stated: “The assertion is based on the notion that leaving contamination in a habitat to leach toxic chemicals for decades is less damaging than removal with restoration of the habitat. EPA provides absolutely no evidence to support this contention and no analysis and no data. The state listed habitats will remain poisoned at levels that are toxic to various insects, snails, crustaceans, amphibians, birds, fish and mammals.” (Comments, Housatonic River Initiative, Reissued Draft RCRA Permit and Statement of Basis for EPA’s Proposed Remedial Action for the Housatonic River “Rest of River”, Page 62).(https://semspub.epa.gov/work/01/568476.pdf)

So what we do know is that while there is extensive evidence that we can successfully remove PCB-contaminated sediment and soil from sensitive areas of the River, there is no overwhelming scientific evidence that justifies leaving significant amounts of PCBs in the sediment and river bank soils of Reach 5B. Especially when we know how even low levels of PCBs negatively impact human health and the health of other species. Therefore, this remedy fails to be fully protective of human health and the environment.

While EPA has previously stated it has met the goals of the General Standards for Corrective Measures, specifically “(7) utilize permanent solutions and alternative treatment technologies or resource recovery technologies to the maximum extent practicable; and (8) satisfy the preference for treatment as a principal element, or explain why the preference for treatment will not be met”, it has, in fact, failed to meet that burden. First, by failing to adequately explain why the preference for treatment will not be met, and barring that, by failing to implement permanent solutions and alternative treatment technologies or resource recovery technologies to the maximum extent practicable. Thus the Final Remedy fails to satisfy a key component of CERCLA regulations. (GE-Housatonic River, Statement of Basis, Page 11).Instead, EPA has opted for landfilling. “Alternative TD 1, disposal in an existing off-site licensed landfill or landfills, would involve the transportation of removed sediment and floodplain soil to commercial solid waste and/or TSCA-licensed landfill(s) for disposal …

For the preferred sediment/floodplain alternative, the estimated cost of disposal via truck is $308 million and via rail is $287 million.” (GE-Housatonic River, Statement of Basis, Page 25.)Not surprisingly, GE prefers to landfill PCB-contaminated riverbank soil and river sediments on-site in either local in-water Confined Disposal Facility/Facilities (CDF) or local on-site Upland Disposal Facility or Facilities.

EPA notes: “Alternative TD 2, disposition in a local in-water Confined Disposal Facility/Facilities (CDF), would involve the placement of dredged sediments in a CDF or CDFs located within the river or backwater area … The estimated cost for this alternative ranges from $100 to $510 million, depending on which Combination Alternative it is paired with; with EPA’s preferred Combination, this alternative is estimated to cost $317 million.”Alternative TD 3, disposition in a local on-site Upland Disposal Facility or Facilities, would involve the permanent disposition of removed sediment/soil at an Upland Disposal Facility constructed in close proximity to the River, but outside the 500-year floodplain. The removed sediment and soil would be loaded into trucks at the staging areas, covered, and transported over on-site and local roadways to a nearby Upland Disposal Facility.Three potential locations for an Upland Disposal Facility were identified and evaluated by GE in the CMS. These sites are located near Woods Pond, Forest Street in Lee, and Rising Pond (referred to, respectively, as the Woods Pond, Forest Street, and Rising Pond Sites). The potential locations evaluated as part of this alternative are shown in Figure 8. The estimated cost for this alternative ranges from $36 to $201 million, depending on which Combination Alternative it is paired with; with EPA’s preferred Combination, this alternative is estimated to cost $100 million.” (GEHousatonic River, Statement of Basis, Page 25, Emphasis added.)

We remind EAB that EPA’s decision to require GE to transport contaminated sediments and soils to an off-site disposal facility fails to promote CERCLA’s preference for treatment: “The offsite transport and disposal of hazardous substances or contaminated materials without such treatment should be the least favored alternative remedial action where practicable treatment technologies are available.” (42 USC 9621(b)) Emphasis added.)HRI strenuously objects to any remedy/treatment option that moves PCBs from one location to another in Berkshire County. All Berkshire communities adjacent to the River have already paid a significant price for GE’s environmentally irresponsible behavior. Asking them to host a PCB-disposal facility is asking them to assume yet another unnecessary burden. It is interesting to note from an environmental justice perspective that all three potential locations GE suggests are communities whose median household income is significantly lower than the Massachusetts median household income of $67,846. Median household income in Lenox, MA is $51,201. Median household incomein Lee, MA is $59,019. Median household income in Great Barrington is $52,026. Each of these communities now face increasing difficulties funding local schools and dealing with rising property taxes.(https://www.bostonglobe.com/metro/2015/12/18/town-town-look-incomemassachusetts/cFBfhWvbzEDp5tWUSfIBVJ/story.html?)

Given the very limited range of treatment options presented in the CMS, HRI would prefer Thermal Desorption, TD5: “The estimated cost for this alternative ranges from $103 million to $1.53 billion, depending on which Combination Alternative it is paired with and how much material is reused; with EPA’s preferred Combination Alternative, this alternative is estimated to cost between $515 and $540 million.” (GE-Housatonic River, Statement of Basis, Page 25). HRI believes that given the lack of other alternatives, the most rigorous consideration of, and commitment to some of the General Standards for Corrective Measures would support the conclusion that TD5 is the most appropriate treatment/disposal option offered us for the Rest of River remedy …

Other EPA regions have successfully employed thermal desorption. An extensive though not comprehensive list of sites that have implemented or planned to implement thermal desorption in the years up to 1997 can be found on pages 7-8 in EPA’s Office of Emergency and Remedial Response’s January 1997 publication: “Engineering Forum Issue Paper: Thermal Desorption Implementation Issues.” https://clu-in.org/download/remed/tdissue.pdf

John Blanchard, PE and Robert Stamnes, PE note: “Thermal desorption has been selected as the remedy for VOCs or SVOCs in soils at the sites or operable units listed below. Some sites are currently operating, and some are in the design phase.” They offer a list of more than 50 sites. “Innovative Treatment Technologies: Annual Status Report (Eighth Edition),” September 1996 (EPA 542-R-96-010)
(http://nepis.epa.gov/Exe/ZyPDF.cgi/10002Y79.PDF?Dockey=10002Y79.PDF)

As EPA notes, “Thermal desorption has been safely used at many Superfund sites…Thermal desorption is typically used to clean up soil that is contaminated with VOCs and SVOCs at depths shallow enough to reach through excavation. Thermal desorption may be faster and provide better cleanup than other methods, particularly at sites that have high concentrations of contaminants. A faster cleanup may be important if a contaminated site poses a threat to the community or needs to be cleaned up quickly so that it can be reused. Thermal desorption is being used or has been selected for use at over 70 Superfund sites across the country.) “A Citizens Guide to Thermal Desorption, EPA Office of Solid Waste and Environmental Protection, EPA 542-F-12-020, September 2012,” Page 2, (Emphasis added).(https://clu-in.org/download/Citizens/a_citizens_guide_to_thermal_desorption.pdf) …

Most recently, the United States (USAID) and the Government of Vietnam have undertaken the large-scale joint remediation of the dioxin-contaminated Danang Airport. According to USAID, “It is expected that over 95 percent of the dioxin will be destroyed through the thermal desorption heating process. Any dioxin that vaporizes will be vacuumed out and captured in a secondary treatment system for liquids and vapors extracted from the pile. The secondary treatment system will ensure that no dioxin or other contaminants are released into the environment.” You can view an animation of the In-Pile Thermal Desorption process currently being implemented at Danang here: https://www.usaid.gov/vietnam/environmental-remediation-process. And you can read more about how and why they chose to utilize Thermal Desorption here: https://www.usaid.gov/vietnam/environmental-remediation-dioxin-contaminationdanang-airport-project-frequently-asked-questions

“EPA writes in its discussion of Short-Term Effectiveness: “TD 2 through TD 5 could cause permanent loss of habitat and loss or displacement of wildlife in the area depending upon where the disposal or treatment facility is located. TD 1 would have fewer impacts on the environment than the other alternatives.” (GE-Housatonic River, Statement of Basis, Pages 37-38).

“HRI suggests that if TD5 is adopted, EPA could surely create an appropriate restoration plan to undo these short-term effects once treatment has been completed. GE has already purchased or has lease agreements for parcels along the Rest of River for its proposed landfills in Lenox, Lee, and Housatonic, Massachusetts. Surely the temporary use of these spaces – followed by restoration – would be better for the habitat that a permanent PCB landfill.

“As for Implementability, EPA notes: “TD 4 and 5 would require access to large areas for the construction and operation of a treatment facility. Locating such a facility would require coordination with state and local agencies. Other access and zoning issues may also be present. Since state and local officials have expressed a strong preference for offsite disposal, these alternatives may encounter significant opposition, thus rendering these alternatives difficult to implement.” (GE-Housatonic River, Statement of Basis, Page 38).

“HRI has been educating local public officials and the public at large about the issues involved with treatment and alternative remedial technologies vs. landfilling for several decades. We believe that EPA overstates the potential of opposition to TD5 especially when the alternative is landfilling without treatment.

While state, even federal officials have failed to educate the public about CERCLA’s preference for both established treatment technologies like Thermal Desorption and alternative technologies like Bioremediation, HRI believes that because of our advocacy there is significant public support for a more permanent solution to our PCB problem.

As for location, a Thermal Desorption unit could be placed on the property GE has already leased or purchased for its intended Upland Disposal Facilities. Please see Appendix B, A Petition of Concerned Citizens supporting the treatment of PCBs rather than landfilling them.

EPA declares: “Regarding the ease of undertaking additional corrective measures, if necessary, if additional wastes were generated as part of future actions, it is likely that the facilities constructed under TD 2 through TD 5 would no longer be available for additional treatment and/or disposal.” (GE-Housatonic River, Statement of Basis, Page 38). HRI believes EPA exaggerates this problem …

As for Cost, according to “Table 7 Cost Summary for Treatment/Disposition Alternatives,” EPA estimates that depending on the potential range of volumes removed under the sediment and floodplain alternatives, from 191,000 cy to 2.9 million cy, the costs for TD5 would range from $103 million to $1,450 million (with reuse) to $106 million to $1,530 million (without reuse.) (GE-Housatonic River, Statement of Basis, Page 39).

EPA’s 1996 guide “The Role of Cost in the Superfund Remedy Selection Process” makes the following points: “The NCP states that the overall goal of the remedy selection process is ‘to select remedies that are protective of human health and the environment, that maintain protection over time, and that minimize untreated waste.(40 CFR 300.430(a)(1)(i)).’ This goal reflects CERCLA’s emphasis on treatment as the preferred method of protection. However, recognizing that CERCLA tempers its emphasis on permanent solutions and treatment through the addition of the qualifier ‘to the maximum extent practicable,’ and also contains the co-equal mandate for remedies to be cost-effective, the NCP goes on to state that, in general, ‘EPA expects to use treatment to address the principal threats posed by a site, wherever practicable.’”

Principal threats for which treatment is most likely to be appropriate include liquids, areas contaminated with high concentrations of toxic compounds, and highly mobile materials (40 CFR 300.430(a)(1)(iii)(A)).”(see “A Guide to Principal Threat and Low Level Threat Wastes,” Publication 9380.3-06FS, November 1991, Page 2, Emphasis added).” (https://semspub.epa.gov/work/11/174446.pdf

“Unfortunately, Region 1 has chosen not to implement the most necessary first step in this process: “The first step of any bioremediation program is to develop a conceptual site model (CSM) to evaluate the potential for applying bioremediation at a site. The CSM takes into account the nature and extent of contamination and site characteristics; site hydrogeology, geochemistry and oxidation-reduction conditions; biodegradation potential; contaminant fate and transport; and receptor and exposure pathways.

“Activities undertaken prior to the implementation of a bioremediation program often involve treatability studies, examination of soil comparability and the structure and function of the microbial community to ensure that undesirable reactions with the contaminants or their degradation products are prevented. The success of a bioremediation application highly depends on characterization and monitoring completed before and during its implementation (Hazen 2010).” (U.S. EPA Contaminated Site Cleanup Information (CLU-IN) Bioremediation Overview Page 1-2, Emphasis added).(https://cluin.org/techfocus/default.focus/sec/Bioremediation/cat/Overview/)

“Because Region One has chosen not to mandate these all-important rigorous pilot studies during the last two decades, we have never been able to effectively evaluate the widest range of alternative remedial technologies that might work in the Rest of River. Norcompare the potential ability of bioremediation or other alternative technologies to reduce the quantity and toxicity of PCB-contamination with EPA’s proposed remedy, nor adequately compare the costs of alternative treatments with the combined costs of dredging and landfilling.” …

Nicolas Kalogerakis offers a review of several successful examples of bioremediation:”Dejonghe et al. … suggest that for soil ecosystems, the capacity of plant roots as creators of physical and chemical discontinuity should be exploited to enhance the effectiveness of bioaugmentation treatments. In the same paper, they reported many cases of successful bioaugmentation of polluted soils over the last two decades.Kalogerakis continues: “Luepromchai et al. [20] reported a very interesting synergistic effect between PCB degrading bacteria (Ralstonia eutrophus and Rhodococcus sp. ACS) and earthworms (Pheretima hawayana) when both added to PCB-contaminated soils. The observed overall PCB (Aroclor 1242) removal was almost triple to that observed when only bacteria or only earthworms were added.“Their results suggest that earthworms facilitate PCB bioremediation by enhancing the dispersal of PCB-degrading bacteria in bioaugmented columns, as well as providing environmental conditions that favour the growth and activity of indigenous PCB-degrading bacteria.” (Luepromchai, E., Singer, A,C,, Yang, C.H. and Crowley, D.E. (2002) Interactions of earthworms with indigenous and bioaugmented PCB degrading bacteria. FEMS Microbiology Ecology, 41 (3): 191-197.) (“Bioaugmentation – Is It Really Needed For The Bioremediation of Contaminated Sites?” Page 4, Emphasis added.)(http://www.srcosmos.gr/srcosmos/showpub.aspx?aa=8113 )

Rockne and Reddy state, ” … microbially-mediated reductive dechlorination of PCBs is an established field, having first been discovered in the mid-1980s. The activity is catalyzed by bacterial consortia that couple the reduction of chlorines on the PCB to the oxidation of an external electron donor under anaerobic conditions, releasing chloride ions. Although in theory any chlorine position can be dechlorinated, due to enzymatic capability (and possible stearic hindrance) most observed dechlorination activity follows a select group of pathways. The reduction pattern can be influenced by a variety of factors, including chlorine substitution pattern and environmental conditions (Bedard and Haberl 1990).

“It has been found that addition of co-substrates has accelerated PCB dechlorination activity through a stimulation or “priming” of the microbes responsible for PCB reductive dechlorination. Perhaps one of the more successful applications of this type of biostimulation has been the addition of less toxic polybrominated biphenyls (PBBs) to stimulate PCB dechlorination (Bedard, Van Dort et al. 1998). It was found that PBBs are readily debrominated at high rates by sediment enrichments that have been previously contaminated with PCBs.

“Once sufficiently dechlorinated, mono- and di-chlorinated biphenyls are known to be aerobically degraded by bacteria such as Burkholderia Str. LB400 (Maltseva, Tsoi et al. 1999) … Because this activity is limited to only mono-and di-chlorobiphenyls, researchers have proposed a sequential anaerobic/aerobic treatment process for PCBs (Maltseva, Tsoi et al. 1999; Master, Lai et al.2002). (“Bioremediation of Contaminated Sites,” Karl J. Rockne and Krishna R. Reddy, University of Illinois, Chicago, October 2003, (Page 10, Emphasis added.)(http://krockne.people.uic.edu/proceeding9.pdf).

“Rayford B. Payne et al reports: “Bioremediation of sediments contaminated with commercial polychlorinated biphenyls (PCBs) is potentially achievable by the sequential activity of anaerobic halorespiration to convert higher chlorinated congeners to less chlorinated congeners that are susceptible to aerobic respiratory degradation. The efficacy of bioaugmentation with anaerobic halorespiring Dehalobium chlorocoercia DF1 and aerobic Burkholderia xenovorans LB400 added concurrently with granulated activated carbon (GAC) as a delivery system was determined in 2 L laboratory mesocosms containing weathered Aroclor-contaminated sediment from Baltimore Harbor, MD, USA …

HRI believes Region 1 needs to expand its consideration of both established treatment technologies like Thermal Desorption and alternative remedial technologies like Bioremediation for the Rest of River. To reiterate, EPA’s November 2013 Superfund Remedy Reports concludes: “The EPA’s analysis of remedy selection from FY 2009 to 2011 and a comparison to earlier data shows that the Superfund remedial program continues to select treatment at nearly 75 percent of Superfund sites over the life of the program. The Superfund program also continues to address complex sites involving multiple media. In addition, the data show that multiple technologies are selected to address the same medium, with each technology targeted at a portion of the medium or a particular contaminant. In some cases, the technologies are employed at the same time, while others are employed in series.” (EPA Superfund Remedy Report, November 2013, Page 19, Emphasis added).(https://clu-in.org/download/remed/asr/14/SRR_14th_2013Nov.pdf) …

CONCLUSION

“In the United States’ Reply Memorandum in Support of Motion to Enter Consent Decree, Civil Action Nos. 99-30225, 99-30226, 99-30227-MAP, EPA argued “the Court should enter the Decree because it is fair, reasonable, consistent with the statutory objectives, and in the public interest.” (Page 2) (https://semspub.epa.gov/work/01/9243.pdf)

“We ask the EAB to apply these standards to Region I’s Final Remedy. With these standards in mind, HRI believes the EAB should order EPA to choose the remedy mostprotective of public health and the environment, SED8/FP7. HRI believes the combined pressure of GE and the Commonwealth of Massachusetts has caused EPA to allow political influence to trump science. Region II’s far more comprehensive and thorough recent decision for the Passaic River will require the removal of 3.5 million cubic yards of toxic sediment from an eight mile section of the river. Region I, rather than requiring the removal of 2,252,00 cy that SED8/FP7 requires is ordering only the removal of 890,000 cy.

We ask the EAB to affirm the recommendations of the NRRB, reminding Region I of its previous position: “that habitat restoration and other impact reduction measures will be effective in meeting the requirements of the Commonwealth’s endangered species law and therefore any impacts will be only short-term.”

“Re-emphasizing NRRB’s concern that Region I’s endorsement of Institutional Controls is far less protective than removal coupled with comprehensive restoration: “The Boards note that CERLA and the RCRA Permit identify protectiveness of human health and the environment as a threshold criteria that all remedies must achieve.“Furthermore the NCP states that the use of institutional controls should supplement (not substitute for) active response measures (e.g. ICs should not substitute for active response measures as the sole remedy unless such active measures are determined to be not practicable).” (The National Remedy Review Board’s October 20, 2011 Recommendations for the Housatonic River, Rest of River Site, Page 4, Emphasis added.).

At the least, HRI asks EAB to order Region 1, as CERCLA mandates, to “conduct an assessment of permanent solutions and alternative treatment technologies or resource recovery technologies that, in whole or in part, will result in a permanent and significant decrease in the toxicity, mobility, or volume” of the PCBs in the Rest of River.We ask EAB to require Region I to implement the CERCLA imperatives for a thorough and rigorous appraisal of permanent solutions and alternative treatment technologies for Rest of River.Should those pilot projects fail to substantially meet EPA’s cleanup standards, we respectfully ask EAB to order EPA to institute Treatment/Disposal Option, TD5 as a critical part of the Final Remedy.

HRI and the public have lived with Region I’s decision to choose landfilling rather thantreatment for the 2 Miles of the River. It is that decision that GE is relying upon as one of the primary reasons for its appeal. This time, we ask that the Environmental Appeals Board to ensure that Region I opts for treatment over landfilling in Berkshire County.”

EPA Region One offered its response to HRI’s petition to the EAB:

“First, although HRI’s Petition turns on interpretations of record materials that are largely technical, HRI in significant measure simply expresses differences of opinion on inherently technical matters within EPA’s expertise. While HRI may agree with alternative technical theories on various issues, simply articulating these preferences does not demonstrate error. Rather, determinations made on the record by EPA’s experts, even in the face of other plausible options, deserve deference from the Board.

In almost every case, more data can be collected, models further calibrated to match real world conditions; the hope or anticipation that better science will materialize is always present, to some degree, in the context of science-based agency decisionmaking. . . . As in many science-based policymaking contexts […] the EPA is required to exercise its judgment even in the face of some scientific uncertainty.

Upper Blackstone Water Pollution Abatement Dist. V. United States EPA, 690 F.3d 9, 23 (1st Cir. 2012), cert. denied, 133 S. Ct. 2382 (May 13, 2013)

“HRI never justifies why EPA’s exercise of discretion in selecting a cleanup based on the CD-Permit criteria was flawed. While HRI may have opted for a different approach, this difference of opinion does not constitute reviewable error or abuse of discretion.

“Second, HRI has not responded to EPA’s Response to Comments regarding several arguments, and has not explained why EPA’s response was clearly erroneous or otherwise warrants review. 40 C.F.R. §124.19(a)(4). Without substantively confronting EPA’s considered responses to comments, a petitioner cannot hope to garner review, particularly where, as here, the matters in dispute are inherently technical in nature and accordingly warrant deference by the Board to determinations made on the record by EPA’s experts. 

“Third, HRI in some cases simply did not raise some of its arguments in its comments on the Draft Permit Modification (“Draft Permit”). AR558619, counter to 40 C.F.R. 124.13, 124.19(a)(4)(ii). The Board should deny the Petition.”

A substantial part of EPA’s argument was procedural and technical – claiming that we hadn’t properly raised some of these concerns previously. But in fact there were multiple occasions during the decades of our advocacy – at public meetings, at meetings of the Citizens Coordinating Committee (CCC), in previous written comments going back dozens of years when we raised their concerns. But the fact that we hadn’t raised these objections during the very last round of public comments for the Draft Revised RCRA Permit was disqualifying.

III. ARGUMENT

III.A  HRI’s Petition Fails to Satisfy Board’s Procedural Requirements

HRI raises a variety of issues. However, there is no basis in the Record to overturn EPA’s considered judgment that the selected remedy is the best-suited alternative under the CDPermit criteria to address PCB contamination. In addition, HRI’s claims should be rejected for not satisfying the Board’s procedural requirements. These procedural issues are addressed immediately below in Section III.A.To the extent the Board decides to substantively review these issues, EPA’s selection is well justified in the Record, as discussed in Sections III.B through III.H. below.

III.A.1 Petition Relies on Arguments Not Raised in the Public Comment Period

As explained further below, HRI’s Petition repeatedly raises arguments that HRI did not raise in its 2014 comments, such as the CERCLA preference for treatment, at RTC III.D.2.c; principal threat wastes, at RTC III.D.2.d; a conceptual site model related to treatment, at RTCIII.D.2.e; and HRI’s preference for thermal desorption, at RTC III.D.2.g. Att. 4.As such, in accordance with 40 C.F.R. §124.19(a)(4)(ii), those arguments should not prevail.

III.A.2 Petition Fails to Confront EPA’s Response to Comments

On all occasions where HRI reiterated its comments on the Draft Permit, HRI failed to address EPA’s responses to HRI’s 2014 comments. Per 40 C.F.R. §124.19(a)(4)(ii), and as EPApoints out below in specific references below, those arguments should not be reviewed by the Board. Specifically, HRI has not shown why EPA’s response to the following comments is clearly erroneous or otherwise warrants review: MNR; Riverbank Cleanup; Floodplains and Vernal Pools; Bioremediation; Institutional Controls; and Volatilization.

HRI appears to acknowledge not addressing the RTC Responses, and relying instead on EPA’s 2015 Intended Final Decision, in its Petition for Review. Pet. at 3.The Courts of Appeal consistently uphold the requirement that a petitioner must substantively confront the permit issuer’s response to the petitioner’s previous objections. See, e.g., City of Pittsfield v. United States EPA, 614 F.3d 7, 11-13 (1st Cir. 2010), aff’g, In re City of Pittsfield, NPDES Appeal No. 08-19 (EAB Mar. 4, 2009) (Order Denying Review).

III.B Record Supports Region’s Overall Remedy and Specific Remedy Components

EPA’s selection of an overall remedy for the sediment and floodplain contamination is clearly supported in the Record, as are the individual components of that remedy. HRI’s challenges to the overall remedy and to specific aspects of the remedy cannot overcome EPA’s appropriate consideration of criteria pursuant to the CD-Permit, and certainly do not show any clear error or other reason warranting review. 

III.B.1 EPA Conducted a Thorough and Fair Remedy Selection Process, Including Its Consideration of HRI’s Preferred Alternative

Overall, as discussed in detail in RTC 17 et al. at 85-87 (Att. 4), EPA considered HRI’s comments and other stakeholder comments in its analysis of the CD-Permit criteria. EPA, in the Record, Comparative Analysis, Statement of Basis, and Response to Comments, explains fully its decision-making in evaluating the CD-Permit criteria for remedy selection. See Sections II.A and II.B herein and Att. 4, RTC 19 et al. at 30-31.EPA, based on its evaluation, determined that the selected remedy is best suited to meet the CD-Permit’s General Standards in consideration ofits Selection Decision Factors, including a balancing of those factors against one another. Att. 4, RTC 19 et al. at 31. EPA’s determination of the best suited remedy represents a balanced, reasonable approach based on the Permit criteria.

Further, EPA fully evaluated HRI’s favored SED 8/FP 7 alternative in selecting the remedy. The Comparative Analysis specifically discusses SED 8/FP 7 in its analysis of all nine criteria. Att. 10, CA §2.2-2.10 at 11-59. Among the Comparative Analysis points regarding SED 8/FP 7 are that it has the most removal of sediments and soils of the alternatives (CA at 12, 13), a high reduction of annual PCB mass passing Woods Pond and Rising Pond Dams (CA at 17), but also the highest cost (CA at 58) and the greatest potential for short term impacts (CA at 48, 51, 53).Att. 10. EPA was charged with evaluating all nine criteria from the CD-Permit, and based on that evaluation, EPA selected a different remedial alternative as best suited for the Rest of River.The approach selected by EPA is a reasonable, balanced approach that is rational in light of all information in the Record, and warrants deference from the Board. 

III.B.2 The Permit Provides the Appropriate Limited Role for Monitored Natural Recovery

HRI expresses concern over the use of Monitored Natural Recovery, or MNR,11 as a component of the cleanup.Pet at 21. EPA’s remedy (referenced in the Comparative Analysis as “SED 9 MOD/FP 4”) only selects MNR for the flowing portions of Reach 7, and Reaches 9-16. Initially, HRI has not, in its Petition, confronted EPA’s RTC, and as such, the petition should not go forward. EPA’s RTC, at 189-197, squarely addresses the public comments related to MNR, including the comments made by Environmental Stewardship Concepts on behalf of HRI, Comments 234, 191, 196, 199, 216, 226, and 261. Att. 4.If the Board substantively considers the argument, HRI’s objection is puzzling because alternative SED 8/FP 7, which HRI favors, includes MNR for the same river reaches as the selected remedy.

“See Table 1, Combination Alternatives Matrix, in the columns labeled “Reach 7 Channel” and “Reaches 9-16”. Att. 10, CA at 10. Table 1 demonstrates that the selected remedy and SED 8/FP 7 both use MNR only in those two components, neither of the remedies includes MNR elsewhere, and both have active remediation for other remedy components. Att. 10, CA at 10.Thus, the Record shows EPA has already incorporated the same role for MNR as HRI is seeking. Further, EPA has explained MNR’s appropriate role for the Rest of River. Similar to the discussion above and as discussed at RTC 191 et al. at 190-193, which was not acknowledged in HRI’s appeal, EPA believes that MNR is an appropriate remedy for the lower concentrations of PCBs found in flowing sections of Reach 7 and Reaches 9 through 16. EPA stated in the RTC that:

MNR in these reaches, coupled with source removal and containment in other
reaches is appropriate for several reasons, including but not limited to:

•  PCB concentrations in these flowing sections or reaches are low and are diffuse over large areas;
• The sediment is reasonably stable;
• Human health and ecological risks are generally low; and,
• The effects of MNR are exhibited in decreasing trends in fish and benthic invertebrate PCB levels that have been observed in Reaches 9-16 during the last 25 years.

Att. 4, RTC at 191.

“Additionally, far from unproven, MNR’s use is consistent with EPA’s 2005 “Contaminated Sediment Remediation Guidance for Hazardous Waste Sites” (“December 2005 Sediment Guidance”) (AR287029), which identifies MNR, in-situ capping, excavation/dredging, and a combination of these actions, as primary methods for consideration during the feasibility/corrective measures study of alternatives.12For the Rest of River, MNR is generally occurring due to source control and the physical processes of sedimentation and dilution of upstream sources. Although the rate of decrease in PCB concentrations via MNR is unacceptably slow for the highly elevated PCB concentrations in upstream reaches and in the Reach 7 and 8 Impoundments, the lower concentrations in the flowing subreaches of Reach 7 and in Reaches 9 through 16 make MNR the best suited approach to remediation in these reaches …

“HRI also seeks support through citing the Passaic River. However, as EPA pointed out in the Response to Comments, with respect to comparison of this remedy decision to other sites, each remedy decision is site-specific and depends on particular factors and criteria for evaluation. Att. 4, RTC 19 et al. at 31.Here, for the Rest of River, EPA did a thorough comparative analysis of alternatives based on the unacceptable risks posed by the PCBs at the site. The comparative analysis was site-specific, evaluating different alternatives based on nine CD-Permit criteria, as referenced in RTC 19 et al. at 30-31. Att. 4. EPA has detailed its decision-making process under the Permit in the Record, including the Comparative Analysis, Statement of Basis and Response to Comments …

III.C Off-Site Disposal¹⁴

HRI expresses concerns with the possibility of on-site disposal of Rest of River PCB contamination, and with landfilling generally. Initially, HRI objects to any remedy/treatment/disposal option that moves PCBs from one location to another in Berkshire County, as it is another burden on top of “the significant price for GE’s environmentally irresponsible behavior” that these communities have already paid (Pet. at 27). HRI notes that, from an environmental justice perspective, all three potential locations GE suggests for on-site disposal are communities whose median household income is significantly lower than the Massachusetts median household income. Id. EPA understands HRI’s concern regarding on-site disposal, but did not select on-site disposal at any of the three potential locations in Berkshire County.

Regarding landfilling generally, HRI argues that “placement of contaminated materials either at on-site or off-site landfills would simply transfer the risk of release from one location” to another. Id. at 30. HRI cites studies noting landfill liner system deficiencies, and increased risk of health effects near landfill sites or hazardous waste sites. Id. at 38. Comparative Analysis supports EPA’s determination of the selected treatment/ disposal alternative – off-site disposal – as best suited to meet the CD-Permit’s General Standards in consideration of the CD-Permit’s Selection Decision Factors, including a balancing of those factors against one another. See Att. 10, CA at 59-77. EPA’s Comparative Analysis included the evaluation of each of the treatment/disposition alternatives against nine remedy selection criteria, including: Controlling the Sources of Releases and Long-Term Reliability and Effectiveness (the magnitude of residual risk, the adequacy and reliability of the alternatives, and the potential longterm adverse impacts on human health or the environment). EPA determined that alternative TD-1 (off-site disposal of PCB-contaminated sediment and soil in a permitted landfill) and TD-1 RR (based on TD-1, but specifying that transport of excavated material by rail be maximized) would effectively isolate PCB-contaminated sediment and soil from being released to the environment, and thus would best meet the Control of Sources of Releases criterion among the different treatment/disposition alternatives. Att. 10, CA at 62. With respect to Long-Term Reliability and Effectiveness, TD-1 and TD-1 RR were found to permanently isolate materials from direct contact with human and ecological receptors (CA at 63); the Adequacy and Reliability of Alternatives sub-criterion favored TD-1, TD-1 RR or TD-3 (CA at 64); and with respect to the Potential Long-Term Adverse Impacts on Human Health or the Environment subcriterion, TD-1 and TD-1 RR were found by EPA to have the least long-term impacts (CA at 66).Att. 10 …

III.D EPA Adequately Analyzed Other Treatment Technologies

Contrary to HRI’s allegations (Pet. at 28), EPA properly considered treatment technologies, including bioremediation and thermal desorption, in the remedy selection process. In reaching its decision, EPA used its considered judgment based on its technical and scientific review. As discussed below, for both procedural and substantive reasons, HRI’s arguments should not prevail.

III.D.2 Consideration of Alternative Technologies in Corrective Measures Study (“CMS”) Process

EPA, as discussed in RTC 20 et al. at 270-272, did require GE to evaluate alternative innovative technologies (including bioremediation) in its CMS Proposal. Att. 4. Several technologies were preliminarily evaluated (screened). In-situ methods evaluated included physical treatment (solidification/stabilization), chemical treatment (chemical dechlorination, ordehalogenation), biological treatment, and thermal treatment (including vitrification). Ex-situ methods evaluated included physical treatment (solidification/stabilization), biological treatment, chemical (solvent) extraction (also referred to as soil washing), chemical destruction (including dechlorination), thermal desorption and thermal destruction (incineration). AR260320 at 4-19 to 4-21, 4-39 to 4-41, 4-49 to 4-61 and 4-66. This includes all of the technologies listed in the EPA document cited by HRI in its Petition, EPA Technology Alternatives for the Remediation of PCB-Contaminated Soils and Sediments, EPA-600-S-13-079 (i.e., incineration, thermal desorption, chemical dehalogenation, solvent extraction, soil washing, solidification/stabilization, bioremediation and vitrification). All but two of these technologies were eliminated based on an initial review of the technologies. Retained for further analysis in the CMS were thermal desorption and soil washing/chemical extraction. AR260320 at 4-19 to 4-21, 4-39 to 4-41, 4-49 to 4-61 and 4-66.

“The detailed analysis in the CMS included a pilot study for soil washing, for whichresults are documented in the Revised CMS. AR580275, Chapters 9.4 and 9.5 and AR580282, Volume 2, Appendices O and P. As discussed in RTC 60 et al. at 270-272 (Att. 4), EPA evaluated these technologies in its remedy selection evaluation for treatment/disposition of contaminated material, and documented the results in the Statement of Basis at 35-39 (Att. 5) and the CA at 59-78 (Att. 10). Furthermore, as discussed in RTC 60 et al. at 270, the Permit, where appropriate, requires alternative treatment technologies by specifying the use of an amendment such as activated carbon and or other comparable amendment in lieu of excavation/dredging (which precludes the need to further treat or dispose of this material) in Reach 5B sediment, in certain Backwaters, and in Vernal Pools. Att. 4; also see Att. 1, Permit II.B.2.b, II.B.2.d, and II.B.3.b …

III.D.2.b CERCLA Preference for Treatment

HRI claims that the Permit does not comply with CERCLA’s preference for treatment. Pet. at 31. The Record shows, however, that EPA has been fully consistent with CERCLA’s preference for treatment. Initially, HRI did not raise this issue in its 2014 comments, and thus is precluded from raising it now. Nevertheless, consideration of treatment was one factor EPA considered consistent with CERCLA’s mandate: “The President shall select a remedial action that is protective of human health and the environment, that is cost effective, and that utilizes permanent solutions and alternative treatment technologies or resource recovery technologies to the maximum extent practicable. If the President selects a remedial action not appropriate for a preference under this subsection, the President shall publish an explanation as to why a remedial action involving such reductions was not selected.”42 U.S.C. § 9621(b)(1).

EPA’s actions on this matter are in accord with CERCLA’s preference, and EPA’ Record thoroughly explains where treatment technologies were or were not selected as part of the Permit. Specifically:

•  As discussed above, GE performed a screening analysis on many technologies and conducted a detailed analysis, including a cost estimate, on two others. EPA then evaluated the nine CD-Permit criteria for the remaining two technologies, along with three other Treatment/Disposition alternatives. Att. 5, Stmt/Basis at 35-39 and Att. 10, CA at 59-78).
• As stated in the Statement of Basis, “EPA also expects the Proposed Remedial Action to . . . “(7) utilize permanent solutions and alternative treatment technologies or resource recovery technologies to the maximum extent practicable; and (8) satisfy the preference for treatment as a principal element, or explain why the preference for treatment will not be met.” Att. 5, Stmt/Basis at 11.”15
• EPA published an explanation for why it selected its final remedy of off-site disposal, with some incorporation of alternative technologies, in its CA at 59-77 (Att. 10), Statement of Basis at 35-39 (Att. 5), and RTC Section III.F. at 234-273 (Att. 4) …

III.D.2.e Use of Alternative Technologies in Permit

With respect to HRI’s request in its Petition that EPA renew its commitment to use of alternative technologies, the Permit makes clear that commitment.Pet. at 41. As discussed immediately above, the Permit includes an Adaptive Management section, including “… to adapt and optimize project activities to account for “lessons learned,” new information, changing conditions, evaluations of the use of innovative technologies, results from pilot studies, if any, and additional opportunities that may present themselves over the duration of the project, including during periodic reviews. Att. 1, Permit II.F. (emphasis added). Moreover, among the requirements for GE’s Statement of Work is an Adaptive Management Plan to be submitted to EPA for review and approval. Att. 1, Permit II.H. Finally, in part in response to public comments, the Permit has been revised to include the following: “During the implementation of corrective measures, GE may propose to EPA for approval the use of innovative technologies as part of an adaptive management approach as outlined in Section II.F. [Adaptive management] below.” Att. 4, RTC 60 et al. at 272. Also, see Att. 1, Permit II.B.5.b.

III.I Financial Health of GE is Not Listed as a CD-Permit Criterion

HRI suggests that given the financial health of GE, it is not unreasonable to require the company to do whatever it takes to remove from the Rest of River as much PCB contamination as is technically possible.Pet. at 32. As discussed in the RTC at 6-7 (Att. 4), and Section II.J of the CD-Permit (Att. 1), Cost is considered one of the six Selection Decision Factors for evaluating remedial alternatives and selecting the corrective measures. Pursuant to Section II.G.2.f of the CD-Permit, cost includes capital costs, operating and maintenance costs, and present worth costs of the alternatives evaluated. Att. 1.

EPA evaluated alternatives pursuant to the cost criterion and the other CD-Permit criteria. The CD-Permit criteria do not include an explicit criterion of financial health of the Permittee. Based on EPA’s CD-Permit criteria evaluation, EPA determined that the selected remedy is best suited to meet the Permit’s General Standards in consideration of the Permit’s Selection Decision Factors, including a balancing of those factors against one another.

IV. CONCLUSION

For all the foregoing reasons, the Petition for Review Submitted by the Housatonic River Initiative, Inc., should be denied… 

To download and read the EPA’s response:

EPAResponseHRIBrief_RCRA 16-02

On March 24, 2017 HRI submitted its response to EPA Region’s One response to our petition before the EAB:

“THE ARGUMENT

Region 1 argues our petition is flawed in three ways.

First, Region 1 states HRI “simply expresses differences of opinion on inherently technical matters within EPA’s expertise.” Region 1 argues that “simply articulating these preferences does not demonstrate error.” Citing Upper Blackstone Water Pollution Abatement Dist. V. United States EPA, 690 F. 3d 9, 23 (1st Cir. 2012), cert. denied, Ct. 2382 (May 13, 2013), Region 1 argues that in the case of changing conditions, and “science-based policymaking contexts […] the EPA is required to exercise its judgment even in the face of some scientific uncertainty.” Asserting, “HRI never justifies why EPA’s exercise of discretion in selecting a cleanup based on the CD-Permit was flawed. While HRI may have opted for a different approach, this difference of opinion does not constitute reviewable error or abuse of discretion.” (Region 1’s Response to Petition of Housatonic River Initiative, Inc. for Review of Final Modification of RCRA Corrective Action Permit Issued by Region 1 (Region 1’s Response), Page 2.)

Region 1 mischaracterizes our argument. The issue for HRI is not a question of whether Region 1 has exercised proper or improper discretion in its Final Remedy, but rather our assertion that Region 1 has sacrificed the very science it has gathered in the course of its responsibilities: to first study and characterize the extent of contamination in the Housatonic River system, and then to investigate appropriate remediation approaches and determine the proper Corrective Actions to limit the risks to human health and the environment.

We presented extensive evidence, including photographs collected and promoted by both the Commonwealth and Region 1 that clearly demonstrates the ability to successfully remediate and restore highly sensitive areas, including vernal pools, in the first two miles of the River. For Region 1 to argue in the Final Remedy that similar sensitive areas in Rest of River ought not to be remediated is not a proper example of the exercise of discretion in the face of scientific uncertainty, but rather a case of contradicting its own clearly demonstrable scientific success and certainty. We again refer the Court to the United States Army Corps of Engineers (ACOE) 2007 report demonstrating the highly successful reduction of PCB levels from 1,534 ppm to less than 2 ppm followed by the successful restoration of that portion of the River.

Indeed, in support of our position, Region 1 responds to GE’s contention in Comments C17, C18 that “Any restoration attempted after a project of the nature and scope of SED 9/FP 4 MOD would not be fully effective or reliable in returning these habitats to their pre-remediation ecological condition,” with the counter assurance that: “While remediation of the river and floodplain at this scale cannot be accomplished to any meaningful level without impacts to the present state of the river and floodplain, the restoration activities will mitigate impacts caused by the remediation. Over the long-term, restoration activities will return the processes sustainingdiverse river and floodplain communities … Thus, EPA has concluded that implementing remediation and restoration as required in the Final Permit Modification will result in the return of the functions, values, characteristics, vegetation, habitat, species use, and other attributes, to the extent feasible and consistent with the remediation requirements.” (“Response to Comments on Draft Permit Modification and Statement of Basis for EPA’s Proposed Remedial Action for the Housatonic River “Rest of River” GE-Pittsfield/Housatonic River Site, October 2016”, (EPA Response to Comments), pages 88-89) (emphasis added.)

Clearly, Region 1 is as confident as HRI that well-planned rigorous restoration can repair the temporary damage of remediation. And clearly in this critical case HRI is not simply expressing “differences of opinion on inherently technical matters within EPA’s expertise” but asking Region 1 to ask GE to implement the science it knows will work. In this case, EPA’s exercise of discretion, and its decision to ignore significant aspects of the technical expertise and experience it gained studying the river and remediating the first two miles in selecting a Final Remedy is indeed, by its own admission, flawed.

We have posited that this process began somewhere after Susan Svirksy and her team, including Weston Solutions, finished its remarkably thorough investigations for the Environmental Risk Assessment and Human Health Risk Assessment. Region 1 made great efforts to educate the public about that work and to build a consensus for a thorough cleanup. This public outreach culminated in April 2011 with the Three Day Charrette Region 1 held in Lenox, Massachusetts.

HRI offered extensive selections from the testimony of these nationally-known experts about both the scientific and technical challenges of remediation and restoration, and possible solutions for Rest of River. Collectively, Keith Bowers, Mike Palermo, Ed Garland, Mark Velleux, and Susan Svirsky of Region 1 made a persuasive case for a more rigorous cleanup than the Final Remedy.The combination of clear resistance from both GE and the significant pressure GE put on several local constituencies, its comprehensive public relations claim that a cleanup would in fact destroy the river, and its growing influence on the Commonwealth had a visible effect on Region 1. Thus began a series of confidential negotiations with the both the Commonwealth and GE from which the public was excluded.

As Region 1 admits: “In light of GE’s and Massachusetts’s concerns, EPA and Massachusetts developed a modified approach that includes, consistent with GE’s concerns, significantly less PCB contaminant removal in particular Core Areas for threatened and endangered species.” (EPA Response to Comments, pages 24-25). The discretion Region 1 exercised in this case has less to do with “science-based policy-making” and technical matters than political compromise.

Region 1’s second issue with our petition is its claim that “HRI has not responded to EPA’s Response to Comments regarding several arguments, and has not explained why EPA’s response was clearly erroneous or otherwise warrants review. 40 C.F.R §124. 19(a)(4). Without substantively confronting EPA’s considered response to comments, a petitioner cannot hope to garner review, particularly where, as here, the matters in dispute are inherently technical in nature and accordingly warrant deference by the Board to determination made on the record by EPA’s experts.” (Region 1 Response, Page 2).

Region 1’s contention may be accurate in the extreme, but it is offered without context. Beginning with our 1994 Comments to the Preliminary Investigation of Corrective Measures (PICM), HRI has constantly and continuously commented on all matters of concern regarding the Housatonic River, EPA and GE. HRI is the EPA TAG recipient and Region 1 is well aware that besides our previous comments over many years, that beginning in 1998, we have constantly and continuously attended meetings and made extensive technical comments regarding every aspect of the cleanup at the EPA Housatonic River Citizens Coordinating Council (CCC). Indeed,the many Region 1 employees who have attended these many meetings have heard these objections articulated so very often they could easily present them word by word to this Court.

“We submitted our comments regarding Region 1’s Draft Permit Modification and Statement of Basis for EPA’s Proposed Remedial Action for the Housatonic River “Rest of River” GE-Pittsfield/Housatonic River Site on October 23, 2014. It took EPA almost two years to respond in October 2016 with a 463-page document that while clearly addressing the concerns of GE and the Commonwealth, merges the concerns of 140 other commenters together, without clear distinction. Region 1 explains this decision on Page 12 of “Response to Comments on DraftPermit Modification and Statement of Basis for EPA’s Proposed Remedial Action for the Housatonic River “Rest of River” GE-Pittsfield/Housatonic River Site” (Response to Comments): “In EPA’s responses, EPA uses the term “commenter” to refer to the commenter except for purposes of comments from General Electric Company (GE), entities of the Commonwealth of Massachusetts, and the State of Connecticut. Those three entities are parties to the Decree, and all have a formal role in the remedy selection process. In light of that role, EPA believes it would assist the reader in understanding and readability if comments from those parties are identified by name, rather than the term “commenter.”

Here is an example of how Region 1 amalgamated the numerous specific concerns of a variety of commenters, and then responded to their concerns: “Comments 19, 20, 40, 41, 49, 65, 69, 74, 188, 189, 194, 230, 326, 328, 336, 344, 349, 372, 375, 376, 378, 379, 388, 402, 412, 413, 427: Many comments were received voicing concern that the proposed remedy is not sufficiently extensive to effectively remediate the PCB contamination in the river and floodplain. The commenters noted that PCBs are known to be a serious problem and the remedy will leave too much of the PCB mass, and inappropriately high PCB concentrations, in the environment. Some commenters noted that humans and ecological receptors in the area will continue to receive lowlevel PCB exposure, with consequent health and ecological risk. One commenter remarked that this would be the least-extensive remedy ever implemented at a PCB site and another expressed support for the most extensive of the various alternatives evaluated. One commenter stated that the proposed plan was developed by a small group of self-appointed environmental experts. One commenter noted that future generations will recognize the importance of a more extensive cleanup. One commenter asked why Region 2 supported a stringent cleanup of the Hudson whereas Region 1 proposed a weakened incomplete approach for the Housatonic.

“EPA Response 19, 20, 40, 41, 49, 65, 69, 74, 188, 189, 194, 230, 326, 328, 336, 344, 349, 372, 375, 376, 378, 379, 388, 402, 412, 413, 427: While many commenters suggested the remedy did not go far enough in removing PCBs, many other comments, including from GE, objected that the remedy required too much remediation. For example, many commenters who live near Reach 5A are opposed to any remediation in this reach, whereas other commenters preferred no remediation in all of Reach 5, and only dredging of Woods Pond.” (“Response to Comments,” page 30)

Commenters then had to rely on the grid Region 1 created in Attachment D Cross Reference Response Matrix for Public Comments on the 2014 Draft Permit Modification and Statement of Basis Response to Comments Housatonic River “Rest of River” to locate Region 1’s responses to their specific comments. 

“While we appreciate the complex task Region 1 faced to respond to so many commenters, Region 1’s decision to organize its Response to Comments in this manner, and its decision not to respond in a simple and direct way to HRI’s 2014 Comments placed an unnecessary and unreasonable burden on us to respond in a timely way to their responses. Given the great delay and overly-complex form its comments took, it is disingenuous for Region 1 to attempt to disqualify our concerns on these grounds. There is the added irony that Region 1 asserts that HRI hasn’t responded to the central concerns of its Comments given that in almost every respect, Region 1’s responses merely reiterated the comments we have been hearingin recent years to our concerns expressed in prior comments and at CCC meetings.

A simple example: “EPA Response 228, 262, 407: Regarding the question as to why EPA has not selected a longer-term solution and “complete remediation,” EPA considered a wide range of cleanup options, including those with larger volumes of contamination being removed from the river and less reliance on capping (e.g. Alternative SED8 in the Comparative Analysis). As discussed in response to other comments, EPA based its remedy selection on an evaluation of all the remedy selection criteria. Based on this analysis, EPA selected a balanced remedy that significantly reduces fish consumption risks. EPA’s rationale for the extent of remediation in the Final Permit Modification is documented in its Statement of Basis and Comparative Analysis, as supplemented by this Response to Comments. EPA continues to believe that the remedy in the Final Permit Modification is appropriate and significantly reduces the risks associated with fish consumption. For a “complete remediation” option as described by commenter, the closest alternative evaluated was the SED 8 alternative. While the SED 8 alternative does remove more PCBs than other alternatives, and reduces the downstream transport of PCBs more fully than other alternatives, it also had higher costs, and higher short-term impacts than other alternatives. In light of EPA’s evaluation of all nine criteria pursuant to the Permit, EPA determined that the selected remedy was the best suited remedy.” (“EPA Response to Comments,” pages 75-76.)

This comment is entirely consistent with recent Region 1 responses. It strains credibility to imagine that Region 1 is not thoroughly familiar with our response to these claims. And again it is more than a bit unfair to ask the Court to disqualify our Petition on the grounds that HRI hasn’t responded to these Comments.Additionally, Region 1 states in its 2016 Response to Comments: “Throughout the duration of the Rest of River project, EPA has kept the local community and other interested stakeholders up to date on various project investigations and activities … Throughout the Rest ofRiver process, EPA has held an informal public input period for many deliverables generated for the Rest of River process…” (“EPA Response to Comments,” Page 2.)

Yet HRI was never informed by Region 1 that our ability to petition EAB was dependent upon a timely response to EPA’s Response to Comments. That Region 1 has leveled similar claims against other petitioner/stakeholders is an indication that Region 1 has failed in its mission to adequately inform us and other likely commenters about this critical aspect of the appeals process.

Finally, while HRI found the wait for EPA’s Response to our 2014 Comments onerous, we nevertheless correctly anticipated Region 1’s criticisms of our 2014 Comments by reiterating our “inherently technical” concerns with the draft Remedy with an extensive presentation by our TAG Technical Advisor Peter L. deFur, PhD. to the Housatonic CCC on November 18, 2015.” https://semspub.epa.gov/work/01/585182.pdfHRI raised and reiterated on that occasion several specific technical, scientific issues that go the heart of what we believe to be examples of Region 1’s erroneous findings of fact and erroneous exercises of discretion. These concerned:

•  Fish tissue contamination
• Insufficient active remediation •
• Failure to address “core areas” •
• Failure to acknowledge and incorporate habitat restoration …

“Similarly, Region 1 is well aware of our longstanding and continuing history of raising the issues of “MNR, Riverbank Cleanup, Floodplains and Vernal Pools, Bioremediation, Institutional Controls and Volatilization.” (Region 1’s Response to HRI Comments, Page 14). In fact, HRI first raised our objections to Monitored Natural Recovery in our 1994 Comments on the PICM. Region 1 is aware that HRI has hosted workshops on most of these issues because representatives of Region 1 attended these workshops. HRI’s concerns about volatilization at David Gibbs home on Newell Street in Pittsfield prompted EPA to do indoor air testing. We havemany times brought David Carpenter, MD, a leading expert on PCBs and volatilization, to speak at public meetings. We have hosted several symposia with researchers and representatives of many companies involved in bioremediation.

“On Pages 16-17 Region 1 raises the issue of our objections to Monitored Natural Recovery stating: “If the Board substantively considers the argument, HRI’s objection is puzzling because alternative SED 8/FP 7, which HRI favors, includes MNR for the same river reaches as the selected remedy.” Region 1 neglects to acknowledge that HRI and other stakeholders were only presented with a range of cleanup/treatment options developed by GE and EPA. Our endorsement of SED 8/FP 7 was prompted by our belief that this was merely the most comprehensive cleanup we were offered. In no way does that choice imply that we agree with every aspect involved with SED 8/FP 7. Nor does it in any way imply a change in our judgment that Monitored Natural Recovery will in no way accomplish a reduction of contamination, and is therefore an inappropriate approach for any aspect of the Rest of River Remedy.

“Given these realities, we ask that the EAB reject Region 1’s argument that our “petition fails to satisfy Board’s procedural requirements.

”Region 1’s third major contention is that “HRI in some cases simply did not raise some ofits arguments in its comments on the Draft Permit Modification (“Draft Permit”) AR558619, counter to 40 C.F.R. 124.13, 124.19(a)(4)(ii).” (Region 1’s Response to HRI Comments, Page 3).Region 1 specifically cites our failure to raise arguments about “CERCLA preference for treatment” and HRI’s preference for thermal desorption.” (Region 1’s Response to HRI Comments, Page 14).Region 1 is well aware that HRI has raised the issue of CERCLA’s preference for treatment year after year, meeting after meeting. In our July 15, 1994 comments on the PICM, we wrote: “More emphasis needs to be placed on the effective removal, treatment and disposal ofPCBs in order to restore our river so that we may once again fish it and swim it without unacceptable risk.”

In our February 22, 2000 “Memorandum Of Law In Support Of Motion To Intervene” in Federal Court, one of our main contentions was that the 2000 Consent Decree “DOES NOT RESOLVE THE PCB CONTAMINATION PROBLEMS IN BERKSHIRE COUNTY,” and in support of that argument we immediately cited CERCLA’s clear preference for treatment: “CERCLA Section 9621(b), General rules for cleanup standards, clearly states: (1) Remedial actions in which treatment which permanently and significantly reduces the volume, toxicity, or mobility of the hazardous substances, pollutants, and contaminants is a principal element, are to be preferred over remedial actions not involving such treatment. The offsite transport and disposal of hazardous substances or contaminated materials without such treatment should be theleast favored alternative remedial action where practicable treatment technologies are available.“The President shall conduct an assessment of permanent solutions and alternative treatment technologies or resource recovery technologies that, in whole or in part, will result in a permanent and significant decrease in the toxicity, mobility, or volume of the hazardous substance, pollutant, or containment. In making such assessment, the President shall specifically address the long-term effectiveness of various alternatives.”

As to the issue of why HRI has now expressed a preference for Thermal Desorption while we did not do so in our 2014 Comments, there is a simple explanation. There have been recent breakthroughs in the technology which have demonstrated new found practical capacities to effectively treat much larger amounts of contaminated soils and sediments. USAID and the Republic of Vietnam engaged in a lengthy and comprehensive examination of a variety of treatment modalities, and they subsequently chose Thermal Desorption. The very clear success Thermal Desorption has demonstrated in remediating high levels of dioxin-contaminated soil at the Danang Airbase now makes Thermal Desorption much more relevant to the Rest of River cleanup than it was before. 

CONCLUSION:

“HRI believes the issues we have raised in our Petition are important enough to warrant the exercise of EAB review. HRI believes that Region 1 has not made comments compelling enough, or presented technical or scientific bases that effectively mitigate our concerns that warrant dismissal of our claims.

“Region 1 cites In re Ash Grove Cement Co., 7 E.A.D. 387, 397 (EAB 1997) to argue “On matters that are fundamentally technical or scientific in nature, the Board will defer to EPA’s technical expertise and experience, as long as EPA adequately explains its rationale and supports its reasoning in the AR.

”But Region 1 fails to meet this standard. Region 1’s decision not to remediate core areas in Reach 5 clearly reveals correctable limitations in “EPA’s technical expertise and experience.”

“Again, we ask only for a more rigorous application of the standards of CERCLA: “permanent solutions and alternative treatment technologies or resource recovery technologies that, in whole or in part, will result in a permanent and significant decrease in the toxicity, mobility, or volume of the hazardous substance, pollutant, or containment.”

To download and read HRI’s response to the EPA Region 1 comments to EAB:

EAB HRI REPLY TO REGION 1 03.24.17

On January 26, 2018 the EAB issued its decision:

“GE and four other parties filed petitions for review with the Board. GE contests both the scope of the cleanup and the requirement to dispose of the excavated materials at an off-site landfill. The other four petitioners are: (1) a private citizen, Mr. C. Jeffrey Cook, who also claims that the cleanup goes too far; (2) the Berkshire Environmental Action Team, a citizens’ group that argues that the cleanup does not go far enough; (3) the Housatonic River Initiative, Inc., another citizens’ group that also asserts that the cleanup should be more extensive and further claims that the excavated material should be treated to remove the PCBs before being disposed; and (4) a group of five Massachusetts communities that contend that the permit should have required GE to comply with the Massachusetts Hazardous Waste Facility Siting Act and to be responsible for the response action “in perpetuity.” The states of Massachusetts and Connecticut each filed a response brief opposing GE’s petition and supporting the Region’s choice of remedy. Amicus briefs expressing support for various aspects of the Region’s permitting decision and opposing other aspects were filed by the Massachusetts Audubon Society, the City of Pittsfield, Green Berkshires, Inc., and the Housatonic Rest of River Municipal Committee. After requesting and receiving several extensions of time, the parties completed briefing in May 2017, and the Board held an all-day oral argument in June 2017.

Held: In brief, the Environmental Appeals Board (1) upholds, with one exception, the Region’s decisions on the scope of the cleanup against both the claims that it goes too far and the claims that it does not go far enough; (2) remands for further consideration the permit requirements on additional response actions required for future work projects in the River by third parties; (3) upholds the Region’s decision not to require treatment of the excavated sediment and soil prior to disposal; and (4) remands for further consideration the permit condition requiring GE to dispose of the excavated material offsite rather than on-site.

The Board’s major holdings, by petition, are as follows: GE Petition (RCRA Appeal No. 16-01)1. Extent of the Cleanup.The Region did not clearly err in choosing a cleanup remedy for the Housatonic River that is more extensive than GE’s preferred alternative.

• GE has not demonstrated that the Region clearly erred in rejecting GE’s claim that a less-extensive remedial alternative would reduce PCB levels in fish tissue to an equivalent degree as the remedy selected by the Region. GE does not address the Region’s argument that GE had relied on modeling results that do not provide an accurate point of comparison for evaluating the alternatives.
• GE has not shown that the Region clearly erred in choosing a cleanup plan for Woods Pond that requires deep-dredging of the Pond before placement of a cap. GE’s narrow focus on the increased number of truck trips and the cost associated with deep-dredging ignores the broad range of factors relevant to remedy selection that the Region considered.
• GE has not shown that the Region clearly erred in choosing a cleanup plan for Rising Pond. GE has not demonstrated that its data concerning the amount of dredging necessary to maintain the Pond’s flood storage capacity are relevant to the circumstances at Rising Pond.
• GE has not demonstrated that the Region clearly erred in choosing a cleanup plan for the Housatonic River floodplain based on the Region’s estimate of human exposure to PCBs in the floodplain. The Region’s estimate of PCB exposure was reviewed by an independent scientific peer review panel, and the Region took GE’s data into account in estimating exposure.
• GE has not supported its claim that the selected remedy will have a long-term negative impact on the Housatonic River ecosystem. Specifically, GE has not shown that the Region did not identify and evaluate the feasibility of measures for restoring that ecosystem. The Region did not clearly err in considering the extent to which adverse environmental impacts from remediation activities could be mitigated by environmental restoration techniques.

2. Additional Work Provisions.The Region did not clearly err in providing for additional work if performance standards based on levels of PCBs in the water and fish tissue are exceeded. These performance standards are not facially inconsistent with the Consent Decree because they require that any additional work be consistent with the scope of the response action. The Region did clearly err, however, in requiring additional response actions to address future work projects in the River by third parties. Unlike the performance standards for PCBs in water and fish tissue, the provisions concerningadditional response actions to address future work by third parties do not appear to require that the Region’s choice of additional work be consistent with the scope of the response action. Because these latter provisions, as currently drafted, appear to facially conflict with the Consent Decree, they are remanded for further consideration by the Region.

3. Dams Not Owned by GE.The Region did not clearly err in imposing inspection and maintenance requirements on GE as to certain dams that GE does not own.GE is mistaken that the Region did not properly evaluate this provision before including it in the Final Permit and that the provision conflicts with other federal requirements pertaining to dams.

4. The Massachusetts Endangered Species Act (“Massachusetts ESA”).The Region did not clearly err in requiring GE to comply with the regulatory requirements of the Massachusetts ESA. Because the permit directs the Region to follow the Massachusetts ESA’s regulatory requirements in implementing the remedy, there is nothing in the permit that, on its face, contradicts the Massachusetts ESA.The requirement to comply with the Massachusetts ESA also does not conflict with the portion of the Consent Decree’s covenant not to sue for Natural Resource Damages claims against GE because that covenant does not attach until GE has complied with applicable or relevant and appropriate requirements such as the Massachusetts ESA.

5. Off-site Disposal.The Region failed to exercise considered judgment in deciding that the contaminated materials excavated during the cleanup should be disposed off-site. The Region rejected on-site disposal based largely on its finding that on-site disposal would not comply with a Toxic Substances Control Act landfill regulation, but the Region failed to explain why a waiver of the landfill regulation was not appropriate for GE’s proposed on-site disposal locations, particularly in light of GE’s contention that the Agency routinely grants such waivers, and the Region failed to reconcile seemingly inconsistent statements in the record. This lack of considered judgment necessitates a remand of the Permit decision to the Region to reconsider selection of the disposal location.The Board offers its observations on several other issues raised by the parties concerning the disposal location issue to aid in the Region’s reconsideration. The Board takes no position on the ultimate resolution of this question.

Housatonic River Initiative Petition (RCRA Appeal No. 16-02)

1. Extent of the Cleanup.The Region did not clearly err in choosing a cleanup remedy for the Housatonic River that is less extensive than the Housatonic River Initiative’s preferred alternative.

• The Housatonic River Initiative has not shown that the Region clearly erred in the manner in which it took into account risks from exposure to volatilized PCBs in choosing the remedial action. The Region considered the risks of volatilized PCBs to be low, as measured at relevant Housatonic River locations.
• The Housatonic River Initiative has not explained why the reasons the Region gave for selecting monitored natural recovery for certain portions of the River were clearly erroneous. Instead, the Housatonic River Initiative’s arguments are based on information from other portions of the River where the Region also determined that monitored natural recovery is not appropriate.
• The Region did not clearly err in choosing a remedy less extensive than the onepreferred by the Housatonic River Initiative. The Region concluded that any marginal additional protectiveness that the Housatonic River Initiative’s preferred remedy would provide in the long-term was outweighed by the amount of time it would take to complete the remedy, as well as by the significantly higher adverse impacts the remedy would have on local communities in the short-term and the remedy’s significantly higher cost.

2. Treatment of Excavated Materials.The Region did not clearly err in deciding that treatment of excavated material to remove PCBs was not required before disposal.

• The Housatonic River Initiative did not properly preserve its claim that the contaminated materials should be treated by thermal desorption because the Housatonic River Initiative did not present this issue to the Region during the public comment process. Absent a showing that the issue was not required to have been raised previously, a party may not raise an issue for the first time on appeal to the Board. 
• The Region did not clearly err in declining to require bioremediation of sediment and soils containing PCBs. Information presented by the Housatonic River Initiative does not show that this treatment method is appropriate for the Housatonic River cleanup …

“In brief, the Environmental Appeals Board (1) upholds, with one exception, the Region’s decisions on the scope of the cleanup against the claims both that the cleanup goes too far and that it does not go far enough; (2) remands for further consideration the Permit provisions concerning additional response actions required for future work by third parties; (3) upholds the Region’s decision not to require treatment of the excavated sediment and soil prior to disposal; and (4) remands for further consideration the Permit provision requiring GE to dispose of the excavated material off-site rather than on-site. We take no position on the ultimate resolution of the question of where the excavated material should be disposed. For the Region’s consideration on remand, the Board also offers several observations on other disputed issues related to the choice of off-site or on-site disposal.

To download and read the EAB decision:

EABDecision2018

The EAB, like Region 1, dismissed our objections. And, understandably, given Region 1’s precedent-setting mistaken approval of the expansion of the unlined Hill 78 landfill, and construction of the adjacent new landfill at Building 71, ruled that Region’s 1 demand that GE transport PCB-contaminated waste out of town was unreasonable. For HRI and the people of Berkshire County, the EAB process resulted in the likelihood that GE would prevail in its insistence for a local dump.

Thus began a protracted secret negotiation process between the parties who had appealed to the EAB. At the end of the process, only HRI refused to sign the negotiated agreement.

Here’s what Tim Gray wrote to EPA Attorney Tim Conway:

January 30, 2020
Attorney Timothy Conway
United States Environmental Protection Agency, Region 1
5 Post Office Square, Suite 100
Boston, MA 02109-3912

Dear Tim:

Thank you and your team for trying to craft a settlement. Unfortunately, and despite several notable changes made to previous version, the Housatonic River Initiative is unable to support this “mediation” agreement as currently written and presented. At our meeting with the EPA at Lee Town Hall, we asked if GE would meet and negotiate with us. We have never heard back from EPA on this request.

In the hope that additional improvements are achievable, HRI is requesting additional time to participate in meaningful dialogue with the EPA and GE, a step as yet to be afforded to our organization.

Our position is, and has always been, that no neighborhood should have to live near a PCB toxic  waste dump, especially one newly created to expedite GE’s participation in a settlement, trading  an improvement to GE’s bottom line for the health and safety of our citizens. Despite the  significant lure of reaching an illusive closure, the risk of a landfill, destined to fail (as they all  eventually do) should compel all parties, even GE, to put aside the promise of cost savings for  the greater good and moral imperative of human and environmental health and safety. Berkshire  County residents have too long been exposed to too many sources of PCBs, deposited by GE in  its hasty pursuit of increased profits.

On Wednesday, the EPA provided us the most recent (Final?) Version of the mediation agreement  with significant material changes,  missing monetary figures and a constellation of other  specifics. With only a 24 hour deadline to review and to craft comments and accompanied  by considerable pressure from the EPA for HRI to make the decision to accept this as the Final  Version …. or not, we’ve experienced this most recent phase as a burden placed on us, citizens  who are trying to participate in the public process yet who have other, competing professional  commitments in our lives.

It’s fascinating how far a head will turn away from or toward a position, lubricated by the promise of unexpected money. Although the current positions held by the various town-executives have not yet been publicly revealed, subsequent to the visual impact of the landfills gifted to the city of Pittsfield, the people living along the Housatonic’s north-south corridor have  appeared to be almost unanimous in their opposition to the creation of an additional PCB landfill  in Berkshire County. The HRI has done its best to be the intermediary advocate for those people.  Despite the sounds of coins dropping into the towns’ coffers, providing for the purchase of a  new police cruiser or snowplow, I suspect they will not be pleased.

Note: One clause in the mediation agreement is quite concerning: “GE shall identify all non-community and private water supply wells  currently  within 500  feet  of  the  Upland  Disposal  Facility  consolidation  area.  Unless the well owner does not consent,  GE shall pay the  installation cost of a connection to public water.  In the event any new water  users  (e.g., new  construction) move within 500 feet of the Upland Disposal Facility consolidation area during  construction or operation and maintenance, GE shall pay the installation cost of  a connection  to public water.”

To decommission citizens’ domestic wells that are in proximity to the proposed TSCA level dump, this appears to indicate that the EPA believes the wells and the respective aquifer(s) and surrounding groundwater could be at risk of becoming contaminated by PCBs and other toxins that will be placed in the dump.

Attached is a list of improvements that we believe will enhance the settlement. Please contact me to arrange a meeting with EPA and/or GE.

Sincerely,

Tim Gray, Executive Director, and on behalf of the Board of Directors
Housatonic River Initiative, Inc.
P O Box 321
Lenox Dale, MA

 

Here is the list of additional improvements suggested by HRI and HEAL:

EPA MEDIATION HRI / HEAL ADDITIONAL PROPOSALS FOR NEGOTIATIONS November 30, 2020 (privileged and confidential)

1. Create an area for pilot testing of new technologies. This could be in the landfill or a separate staging area. Treat sediment with emerging innovative PCB-destruction technology. When effective treatment is evident, remediate entire landfill. If after 20 years no adequate treatment if found, relocate contaminated sediment to out of state TSCA licensed landfill.

2. Open up mediation ideas to the public. Allow public discussions.

3. Renew HRI TAG grant

4. Data at the site is old. New baseline studies in CT and MA for biota, sediment, banks, floodplain, tributaries, water column, air, tree bark, etc.

5. Restore an environmental science team or biologists to the site.

6. Formal public comment periods for all documents relating to Reissued RCRA Permit for Rest of River.

7. CCC will be sustained, with GE mandated to provide in person updates and answer questions at CCC meetings.

8. To be provided sufficient funds allowing the occasional hire of 3rd party consultants or advisory groups to independently corroborate achievement of clean up standards,data collected by GE, or even EPA’s consultants, regarding a variety of actions/activities prescribed by the revised clean up of “Rest of River.”

9. Comprehensive peer-reviewed human and ecologic risk assessments related to siting a 1.3M to 3M cubic yard PCB (averaged to <50ppm) TSCA-level dump at one of the proposed sites. HRI to be involved with choosing peer reviewers.

10. As relevant to the prescribed actions in Attachment C: aggressive resampling to insure removed and remaining PCB levels of soil and sediment are what they should be.

11. Technical Assistance Services for Communities (TASC) for Connecticut reaches.

12. Install footbridge across river from West Cornwall side to Sharon side, to perhaps terminate at Housatonic Meadows State Campground.

13. Whenever bridge reconstruction is required in Connecticut, General Electric will be responsible to remove and transport any PCB contamination discovered as part of the reconstruction design.

14.Stevenson Dam: comprehensive sampling, testing, and characterizing of millions of cubic yards of heavily contaminated sediment. Removal action of sediment to be dewatered and trucked to Lenox Dale.

15. Install live streaming camera at landfill, Wood’s Pond, active working sites, and make available on EPA Housatonic River website.

16.Sample, test, and characterize COCs behind Bulls Bridge Dam. If levels are significant, removal action of sediment to be dewatered and trucked to Lenox Dale.

17. Remove Falls Village dam and contaminated sediment. Install fish ladder at Falls Village dam site

 

THE SETTLEMENT

 

“The plan for cleanup of PCBs released to the Housatonic River from the GE Pittsfield/Housatonic River site has taken a significant step forward. After a mediated negotiation among a variety of stakeholders, a Settlement Agreement has been reached to enhance and accelerate EPA’s original 2016 cleanup plan.

“In short, the Settlement Agreement includes the following major components:

• Hybrid disposal approach, with the most contaminated material transported out of state and the remainder consolidated safely on-site in a lined Upland Disposal Facility.
•  Immediate start to cleanup investigation and design work.
• Significant cleanup enhancements to the remedy.
• Substantial economic development package to municipalities of $63 million, along with land transfers, and other community benefits.
• Reduced impact to the community and enhanced coordination with stakeholders. 
• Commitment to further research on innovative technologies, demonstration efforts and pilot studies.

BACKGROUND

“In October 2016, EPA issued a final Resource Conservation and Recovery Act (RCRA) Permit which documented EPA’s decision on how best to clean up the Housatonic River and its floodplains. The Permit was appealed by five parties. The EPA Environmental Appeals Board (EAB) listened to the arguments by all of the parties and made a ruling in January 2018. In its decision, the EAB agreed with EPA on most cleanup issues, but raised questions for EPA to consider on EPA’s decision to dispose of the sediment and floodplain soils outside of Massachusetts. The EAB’s decision and the challengers’ comments on the 2016 Permit gave EPA insight on the various stakeholders’ views regarding potential improvements to EPA’s original decision.

“Local communities wanted to be assured that no new hazardous waste landfills would be built in the Berkshires as part of the remedy, while GE believed that a local landfill would be fully protective while avoiding the risks and costs associated with the long distance transport of large volumes of sediment and soil. Residents were concerned about impacts of remediation and truck traffic on their day-to-day lives. Local environmental groups wanted EPA to explore innovative treatment technologies and continue the search for solutions that render the PCBs inert. Local governments were interested in compensation for impacts of “hosting” the cleanup, especially if land was to be used for temporary or permanent storage or processing.

“EPA also heard loud and clear the opinion that the cleanup leaves too many PCB-contaminated sediments and soils in place, relying too much on capping the contamination in the river. Furthermore, stakeholders wanted to be involved in crafting a solution and be consulted during the implementation of the cleanup. Finally, EPA learned that stakeholders wanted to put an end to any litigation and get the cleanup started soon. 

“Based on that, EPA and a number of stakeholders explored using mediated discussions to see if there was one solution that all the parties could agree with, and that made for a faster and better cleanup. Over the past year, the parties have worked to come up with such a solution. During those discussions, all the parties listened and agreed to reasonable compromises for the good of the River and communities. The following parties (EPA, GE, the Towns of Lee, Lenox, Stockbridge, Great Barrington, and Sheffield, the City of Pittsfield, the State of Connecticut, the Massachusetts Audubon Society, the Berkshire Environmental Action Team, and C. Jeffrey Cook) have reached a Settlement Agreement.

SETTLEMENT AGREEMENT

Key Elements of the Settlement Agreement are shown in Figures 1 and 2, and outlined below:

A.“Hybrid” Disposal ApproachRather than a single solution to dispose of contamination either on-site or off-site, the agreement calls for a two-pronged solution. Specifically, the most contaminated soils and sediments (those soils/sediments regulated as hazardous waste under the federal Resources Conservation and Recovery Act (RCRA) or as PCB wastes requiring disposal in a chemical waste landfill under the Toxic Substances Control Act (TSCA)) will be shipped out of state for disposal, while the remaining excavated soils and sediments will be consolidated into a local Upland Disposal Facility as shown in Figure 3 and described below.

• For these lower level contaminated materials, a single disposal location called the Upland Disposal Facility will be sited at a portion of the Lane Gravel Pit property at the Lee/Lenox line, over 1000 feet from the river, and over  15 feet above the water table. (The other two landfill locations previously proposed by GE will not be used for disposal of PCB material.)
• The average concentrations of PCBs to be placed in the Upland Disposal Facility are estimated to be 20 to 25 milligrams per kilogram (or parts-per-million (ppm)), well below the 50 ppm federal criterion for commercial PCB landfills. Segregation of the material will be based on sampling protocols that are also outlined in the Settlement Agreement.
• Despite the Upland Disposal Facility at the Lane Site only accepting lower-level material, GE will design it as a state-of-the-art facility for added protection, with a double liner under the landfill, leachate collection, a groundwater monitoring network, and a multi-layer low permeability engineered cap/cover on top of the landfill. The Settlement Agreement is clear that no one can use the Upland Disposal Facility for taking any materials beyond those that are part of the Rest of River cleanup.

B. Immediate Start to Work

• Reduce litigation and its cleanup delays through all parties committing to forego litigation challenges if EPA’s revised cleanup plan is consistent with the Settlement Agreement.
• •GE agrees to start now to implement the investigation and design components of the cleanup plan to accelerate the commencement of the Rest of River cleanup rather than wait for EPA to finalize the Permit. 

C. Cleanup Enhancements

The Settlement Agreement requires GE to complete a number of improvements to the cleanup plan to remove additional contamination from the river system, lessen the burden on adjacent property owners, and improve the overall performance of the cleanup, including the following:

•  Eliminate almost 100 acres of capping, 1/3 of all capping in original plan, by removing more contaminated sediments in six different reaches of the River.
• Remove two dams downstream of Woods Pond (Columbia Mill Dam and Eagle Mill Dam). 
• Broaden the approach to remediation of vernal pools by testing methods for excavation and restoration of vernal pools as well as the use of innovative non-invasive methods. 
• Mitigate discharges from GE-owned stormwater pipes at the GE Plant in Pittsfield.
• Conduct additional floodplain remediation on over 20 residential properties to eliminate the need for use restrictions called for in the original plan.
• Following sampling, conduct a review of riverbank concentrations and erodibility in upper reaches, to consider whether additional bank removal is appropriate.
• Conduct additional cleanup for heavily used areas of Mass Audubon’s Canoe Meadows property.
• All other cleanup requirements in the 2016 Permit are still in force. 

D. Mitigation of Impacts to Towns and Residents and Enhanced Coordination

The Settlement Agreement calls for substantial steps to address potential adverse impacts of the cleanup on the community and provide assistance to local stakeholders in reviewing cleanup plans as they are developed, including the following:

• Hydraulically pump via pipe rather than truck, if feasible, sediments from Woods Pond and some areas north of the pond, eliminating 50,000 truck trips from the roads of Lee and Lenox.
• Impose limitations on the transport of waste material on small residential streets. 
• Engage with property owners, Native American tribes, local governments, communities, affected property owners and other stakeholders to ensure that their input is included in the design process. 
• Inventory the condition of all roads to be used during the remediation and commit to repair any significant damage attributable to the remediation work. 
• Ensure that schedules for submissions and reviews take into account any necessary local government and stake- holder reviews. 
• Coordinate with municipal officials and affected landowners regarding the work activities, schedule and traffic routes, and incorporate this information into work plans submitted to EPA prior to the work. 
• Provide contractor support to provide technical assistance to the City of Pittsfield and the Towns of Lenox, Lee, Stockbridge, Great Barrington, and Sheffield. The contractor will be funded by EPA and can provide support for the communities’ oversight of the work and providing information back to the community on that work. 
• Work cooperatively with the State and affected municipalities to enhance recreational activities such as canoeing, other water activities, hiking, and bike trails in the Rest of River corridor. 
• Coordinate with municipalities regarding the upgrade of stormwater outfalls in the river as the work is progressing. 

E. Economic Incentives 

• GE will pay $55 million to a group of municipalities: Lee, Lenox, Stockbridge, Great Barrington and Sheffield.
• GE will pay $8 million to the City of Pittsfield.
• GE will donate the parking lot and building on Woodlawn Avenue to the City of Pittsfield or its designee; GE will also remove fencing and pavement from additional former parking lots on Tyler Street, landscaping these properties, and potentially turning ownership over to the City.
• GE will work cooperatively with the City of Pittsfield to secure and enhance the appearance of remaining GE plant area buildings near Tyler Street.
• GE will donate its property adjacent to Rising Pond to the town of Great Barrington or its designee.
• GE will release use limitations currently in place on the Hazen Paper Mill (adjacent to Rising Pond in Great Bar- rington) to facilitate potential development. 

F. PCB Treatment Technologies Research Commitment

• EPA has committed to a continuing effort towards the identification of opportunities to apply existing and potential future research resources to PCB treatment technologies and will solicit research opportunities for research institutions and/or small businesses to target relevant technologies. 
• GE and EPA will continue to explore current and future technology developments and, where appropriate, will collaborate on on-site technology demonstration efforts and pilot studies, and, consistent with the adaptive management requirements in the Final Permit, will consider the applicability of promising research at the Housatonic Rest of River site.

NEXT STEPS

There are several additional steps that need to be completed before most of the agreements outlined in this Settlement Agreement are effective and enforceable. First, in the coming weeks, local officials, with EPA support, will hold public informational sessions to explain the Settlement Agreement. Those dates and locations are outlined on the front page of this fact sheet. Second, the Settlement Agreement includes a number of modifications to EPA’s 2016 Permit. EPA will modify the Permit to incorporate these modifications and will present these modifications to the public during a comment period of at least 45 days. EPA also anticipates holding public meetings and a hearing as part of that public comment period. Third, after considering and responding to comments, EPA will finalize a new revised Permit. EPA hopes to complete these revisions, solicit public comment and finalize a Revised Permit during 2020.

Download and read EPA’s Fact Sheet on Settlement:
643539FACTSHEETAgreement

Download and read EPA GE Agreement:
settlement_agreement